CROSSING LENSES: POLICING’S NEW VISIBILITY...

59

CROSSING LENSES:

POLICING’S NEW VISIBILITY AND THE

ROLE OF “SMARTPHONE JOURNALISM”

AS A FORM OF FREEDOM-PRESERVING

RECIPROCAL SURVEILLANCE

Bryce Clayton Newell†

Abstract

Citizens recording police, a form of action that has been termed “sousveillance” (surveillance from underneath) or the “participatory panopticon,” has become increasingly common in recent years. Citizen media can have a substantial impact on policing and police image management—and thus affect public perceptions of police legitimacy. On the other hand, police departments are increasingly utilizing sophisticated visual surveillance technologies, such as officer-mounted wearable cameras, to document police-citizen encounters. In some states, eavesdropping statutes have been applied against citizens attempting to record encounters with police officers, often while these same statutes contain exemptions for officer-initiated recordings. Courts have begun to weigh in on the legal rights of citizens documenting police action—and the constitutionality of the state eavesdropping laws that

prohibit such conduct—and have generally begun to recognize a First Amendment constitutional right to film police in public spaces. However, the continued proliferation of recording devices and smartphone applications designed to allow citizens to covertly record encounters with police officers in efforts to hold public officials accountable puts some users (perhaps even unwittingly) at serious legal risk. This situation presents a distinct problem—a problem of one-sided surveillance power and limited transparency that potentially threatens the constitutional rights and freedoms of American

† Ph.D. Candidate, University of Washington (Seattle), Information School; M.S. in Information

Science, University of Washington; J.D., University of California, Davis School of Law. The author wishes to

thank Ingra Schellenberg, Adam D. Moore, Steve Herbert, Batya Friedman, and Ryan Calo for their helpful

comments, suggestions, and critiques of portions of this Article and the arguments presented herein.

60 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2014

citizens. This Article examines, theoretically, the role that citizen media should play as a liberty-preserving form of reciprocal transparency, what forms of respect ought to be owed by camera-wielding citizens to the police officers and other subjects of their recordings in public spaces, and what moral and legal obligations citizen journalists may have (or may not have) to respect and obey wiretapping laws that prohibit recording in public spaces without all-party consent.

TABLE OF CONTENTS

I. Introduction ............................................................................................60 II. Citizen Media, Participatory Journalism, and the Right to Record ........66 III. Privacy and Expression as Aspects of Political Liberty.........................70

A. Liberty ............................................................................................71 B. Privacy ............................................................................................74 C. Free Speech/Expression and the First Amendment ........................78

IV. Policing’s New Visibility(ies) ................................................................81 V. Wearable Cameras, Police work, and Officer Accountability ...............84

A. The Privacy Implications of Officer-Mounted Cameras ................89 B. Transparency and Access to Government Surveillance

Footage ...........................................................................................92 VI. The Costs of Tragedy .............................................................................93

A. Facing the Obvious Question .........................................................94 B. Facing the Tragic Question ............................................................97

VII. The Role of Respect in Conducting “Sousveillance” .............................98 A. Respect for Subjects of Recordings .............................................. 100 B. Respect for Law............................................................................ 102

VIII. Conclusion ........................................................................................... 103

I. INTRODUCTION

In recent years, police officers and law enforcement agencies have been

conducting increasingly sophisticated (and intensive) information gathering

through visual and spatial surveillance of citizens in public spaces. Law

enforcement’s past reliance on public and private CCTV for visual evidence of

criminal conduct or officer-citizen encounters has now been augmented by the

widespread adoption of officer-mounted wearable cameras and dashboard

cameras mounted in patrol vehicles. At the same time, however, law

enforcement has also been forced to respond to new forms of police visibility

enabled by increased citizen-initiated video surveillance of police officers in

these same public areas—an example of “sousveillance” (surveillance from

underneath)1 or the “participatory panopticon”

2 discussed in the surveillance

1. See Jean-Gabriel Ganascia, The Generalized Sousveillance Society, 49 SOC. SCI. INFO. 489, 489

No. 1] CROSSING LENSES 61

studies literature. On one hand, the ubiquity of handheld video recording has

led to increased visibility of police officer misconduct—such as officers

spraying pepper spray into the faces of non-violent protesters on the UC Davis

campus,3 the shooting of Oscar Grant on a San Francisco subway platform,

4

and the death of Ian Tomlinson during the London Riots in 20115—but it has

also provided law enforcement with a great source of citizen-sourced evidence

after unlawful events (such as in the post-event investigations of the Boston

Marathon bombings in 20136 and the Vancouver Stanley Cup Riots of 2011

7)

that has led to a number of important criminal prosecutions.8 Thus, rampant

citizen-initiated surveillance—mostly of the type I refer to herein as

“smartphone journalism”—poses a threat to law enforcement image

management and promises both a method of holding individual officers

accountable for misconduct and for crowd-sourcing visual surveillance to aid

in investigating crime and terrorism.

As the proliferation of high-resolution smartphone and wearable cameras

(including technologies like Google Glass with embedded cameras, WiFi

connectivity, and information rich data presentation on its lenses) continues,

these problems will only increase in importance and visibility. The powerful

promise of citizen media to expose state wrongdoing is also underscored by the

potential for such footage to go viral on video-sharing websites such as

YouTube and on online social media networks. The increased, even

ubiquitous, rise in the number of video recording devices regularly recording

(2011); Steve Mann et al., Sousveillance: Inventing and Using Wearable Computing Devices for Data

Collection in Surveillance Environments, 1 SURVEILLANCE & SOC’Y 331, 332 (2003), available at

http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/3344/3306.

2. Jamais Cascio, The Rise of the Participatory Panopticon, WORLD CHANGING (May 4, 2005),

http://www.worldchanging.com/archives/002651.html; Mark A.M. Kramer et al., MobiMundi: Exploring the

Impact of User-Generated Mobile Content—The Participatory Panopticon, PROC. 10TH INT’L CONF. ON HUM.

COMPUTER INTERACTION WITH MOBILE DEVICES & SERVICES 575–77 (2008).

3. See Federated Univ. Police Officers Ass’n v. Superior Court, 159 Cal. Rptr. 3d 541, 543 (Cal. Ct.

App. 2013); Anupam Chander & Madhavi Sunder, Foreword: Occupying Our Hearts, 45 U.C. DAVIS L. REV.

1585, 1605 (2012); Steven A. Lautt, Note, Sunlight Is Still the Best Disinfectant: The Case for a First

Amendment Right to Record the Police, 51 WASHBURN L.J. 349, 376–77 (2012).

4. Mary Grace Antony & Ryan J. Thomas, ‘This Is Citizen Journalism at Its Finest’: YouTube and the

Public Sphere in the Oscar Grant Shooting Incident, 12 NEW MEDIA & SOC’Y 1280, 1280–81 (2010).

5. Chris Greer & Eugene McLaughlin, We Predict a Riot? Public Order Policing, New Media

Environments and the Rise of the Citizen Journalist, 50 BRIT. J. CRIMINOLOGY 1041, 1049 (2010).

6. Spencer Ackerman, Data for the Boston Marathon Investigation Will Be Crowdsourced, WIRED

(Apr. 16, 2013, 1:18 PM), http://www.wired.com/dangerroom/2013/04/boston-crowdsourced/; Tarun

Wadhwa, Lessons from Crowdsourcing the Boston Bombing Investigation, FORBES (Apr. 22, 2013, 9:32 AM),

http://www.forbes.com/sites/tarunwadhwa/2013/04/22/lessons-from-crowdsourcing-the-boston-marathon-

bombings-investigation/.

7. See VANCOUVER POLICE DEP’T, 2011 STANLEY CUP RIOT REVIEW 14, 71, 75, 92 (2011), available

at http://vancouver.ca/police/assets/pdf/reports-policies/vpd-riot-review.pdf (“[N]umerous citizens identified

people in photos and videos on the Internet and forwarded the information to the [Vancouver Police

Department] for their investigation within hours of the riot.”).

8. See, e.g., Press Release, Vancouver Police Dep’t, IRIT Recommends Charges Against 350th

Suspected Rioter (July 23, 2013), http://mediareleases.vpd.ca/2013/07/23/irit-recommends-charges-against-

350th-suspected-rioter/ (charging woman with assault because of civilian video evidence).


in public spaces has generated sometimes fierce objection by officers who do

not wish to be recorded, and it has also altered the way in which the traditional

media reports on policing activity (often with negative implications for police

organizations and individual officers).9 However, the ability of citizens to

record the official, public actions of police officers and other state actors may

also serve an important oversight purpose and, ultimately, help preserve

individual liberty more broadly. As such, this action ought to be protected by

the First Amendment in a way that also preserves personal privacy.

The rise of citizen media (and the related concept of citizen journalism)

has also brought about a wealth of discussion about how existing laws do, or

should, protect the rights of citizens acting as journalists, how to define

journalist and journalism, and whether (and when) the traditional news media

should be afforded greater legal protections than citizen journalists.10

These

debates have ranged from issues regarding bloggers’ rights to shield sources,11

state and local statutory definitions of “journalist,”12

and the rights of citizens

to record police officers and other public officials engaged in carrying out their

official duties.13

In some states, the act of recording an officer in public may

violate state wiretapping laws and put the offender at risk of criminal charges,

even when an officer has no reasonable expectation that the conversation is

private.14

In other states, overtly recording officers in public spaces is

generally allowed, whether by judicial decisions or more lenient statutory

frameworks.15

In recent years, the increase in citizen media production and the

proliferation of camera enabled mobile technologies, like cellphones, has

9. See Greer & McLaughlin, supra note 5, at 1050–51 (noting that the media relied on civilian

captured video to report on cases of police misconduct).

10. See, e.g., Bloggers’ Rights, ELECTRONIC FRONTIER FOUND., https://www.eff.org/bloggers (last

visited Jan. 21, 2014) (discussing efforts to extend journalistic protection to bloggers).

11. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-HZ, 2011 WL 5999334, at *1 (D. Or.

Nov. 30, 2011) (declining to extend Oregon Shield Laws to bloggers); Order on Motion for Reconsideration,

Johns-Byrne Co. v. TechnoBuffalo, LLC, No. 2011 L 009161 (Ill. Cir. Ct. July 13, 2012), available at

http://www.dmlp.org/sites/citmedialaw.org/files/2012-07-13-Order%20on%20motion%20for%

20reconsideration.pdf (discussing conflicting legal precedent on extending journalistic shield laws to

bloggers).

12. See Gregg Leslie, Who Is a “Journalist?” And Why Does It Matter?, NEWS MEDIA & L., Fall 2009,

at 4 (discussing reasons for statutory definitions of journalist).

13. See, e.g., ACLU of Illinois v. Alvarez, 679 F.3d 583, 586 (7th Cir. 2012), cert. denied, 133 S. Ct.

651 (2012) (invalidating portions of Illinois eavesdropping statute that criminalizes audio recording of police

officers in public space); Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (affirming citizen journalist filming

a police officer is within established First Amendment rights).

14. See, e.g., 720 ILL. COMP. STAT. 5/14-1(d) (2012) (applying eavesdropping statute to communication

of a “private nature”); Alvarez, 679 F.3d at 595 (“[T]he statute sweeps much more broadly, banning all audio

recording of any oral communication absent consent of the parties regardless of whether the communication is

or was intended to be private. The expansive reach of this statute is hard to reconcile with basic speech and

press freedoms.”).

15. See Smith v. City of Cumming, 212 F.3d 1332, 1334 (11th Cir. 2000) (“[The public] ha[s] a First

Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police

conduct.”); Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (affirming right to videotape police

office on public sidewalk); State v. Flora, 845 P.2d 1355, 1357–58 (Wash. Ct. App. 1992) (holding that police

arrests are not private and therefore not subject to Washington eavesdropping statute).


impacted the public perception and media portrayal of policing tactics used

during large-scale protests and riots, as well as in more ordinary policing

situations.16

Video filmed by citizen journalists has found its way into the popular

discourse about accountability of policing and government, and millions have

witnessed shocking events of alleged police misconduct via online video-

sharing websites, the websites of traditional media and press outlets, blogs, and

social media. Conflicts between police officers and citizen journalists leading

to police arresting citizens for violations of state wiretapping and

eavesdropping laws in some states (felony offenses in some cases)17

have

become quite common.18

Reports of these occurrences have continued to

come to light even in some jurisdictions where police departments have

explicitly promulgated department policies that recognize that citizens have

constitutional rights to film officers and that have instituted or increased officer

training.19

As a consequence, state and federal courts have begun to weigh in on the

legal rights of citizens documenting police action—and the constitutionality of

the state wiretapping laws that prohibit such conduct—and have generally

begun to recognize a First Amendment constitutional right to film police in

public spaces.20

However, the continued proliferation of smartphone

applications designed to allow citizens to covertly record encounters with

police officers in efforts to hold public officials accountable may place some

users (perhaps even unwittingly) at serious legal risk. Indeed, activists and

organizations such as the New York Civil Liberties Union and the American

Civil Liberties Union (ACLU) of New Jersey have been distributing

smartphone applications designed to allow citizens to covertly record

encounters with police officers as part of law enforcement accountability

programs, while also actively pursuing litigation (along with other

organizations like the National Press Photographer Association) on behalf of

photographers and citizen journalists arrested for recording officers.21

Police

agencies are also increasingly adopting their own video recording policies and

16. Antony & Thomas, supra note 4, at 1292.

17. See, e.g., 720 ILL. COMP. STAT. 5/14-4(a) (“Eavesdropping, for a first offense, is a Class 4 felony

and, for a second or subsequent offense, is a Class 3 felony.”).

18. Stephanie Claiborne, Is It Justice or a Crime to Record Police?: A Look at the Illinois

Eavesdropping Statute and Its Application, 45 J. MARSHALL L. REV. 485, 501–04 (2012) (highlighting the

prevalence of arrests for violations of state wiretapping and eavesdropping laws in Illinois).

19. See, e.g., Justin Fenton, Claim: Woman Arrested, Camera Destroyed After Recording Baltimore

Police, BALT. SUN (May 15, 2013), http://articles.baltimoresun.com/2013-05-15/news/bal-claim-woman-

arrested-camera-destroyed-after-recording-baltimore-police-20130515_1_christopher-sharp-camera-phone-

wbal-tv.

20. See, e.g., ACLU of Illinois v. Alvarez, 679 F.3d 583, 586 (7th Cir. 2012); Glik v. Cunniffe, 655

F.3d 78, 85 (1st Cir. 2011).

21. See generally Eunice Lee, N.J. ACLU Unveils ‘Stealth’ App Allowing Citizens to Secretly Record

Police, N.J. ONLINE (July 3, 2012, 6:30 AM), http://www.nj.com/news/index.ssf/2012-/07/nj_aclu_unveils_

stealth_app_al.html (discussing ACLU’s release of “stealth” app for citizens’ smartphones).


practices, such as the utilization of dashboard cameras or body-mounted

cameras, as a way to dispel potential violence and document police-citizen

encounters (both to provide evidence and to protect officers from false

complaints).22

Because of the overlap and potential inconsistency between state laws

and judicial interpretations of the First Amendment, at least in the states that

criminalize the recording of conversations without the consent of all parties to

the conversation, the production and practice of citizen media—whether covert

or not—may force citizens to consider what Martha Nussbaum calls the “tragic

question.”23

Counter to the “obvious question” (which action should I take?),

the tragic question forces us to consider whether “any of the options open to us

[are] free from serious moral wrongdoing.”24

In Nussbaum’s estimation, the

purpose of confronting the tragic question is to make us think about “how we

might design a society where such unpalatable choices do not confront people,

or confront them less often.”25

Whether citizen journalists are ultimately faced

with the tragic question may turn on whether we can equate legal obligations

with moral obligations. At first glance, common intuitions would support the

proposition that, in general, we have some moral obligation to obey the law, at

least in the aggregate, to avoid civil anarchy. But I would also suggest that in

everyday life we generally tend to improperly conflate legal obligations with

moral obligations.

In this Article, I set out to examine the relationship between privacy,

liberty, and security implicated by government surveillance (in the form of

officer-mounted wearable cameras) and citizen-initiated efforts to cast the gaze

back at the government through filming police officers carrying out their

official duties in public places. In particular, I aim to explore how both liberal

and neo-republican conceptions of liberty,26

privacy, and free speech27

can

22. See, e.g., Andrea Noble, Police Now Armed with Video: Recording Can Protect Officer, Citizen

Through Visual Proof, WASH. TIMES (Feb. 25, 2013), http://www.washingtontimes.com/news/2013/feb/25/

police-now-armed-with-video/?page=all (citing opinions from law officers and public officials on the issue of

recordings of police activity).

23. See Martha C. Nussbaum, The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis, 29 J.

LEGAL STUD. 1005, 1005 (2000) (discussing the author’s views on the questions individuals face in given

situations).

24. Id.

25. Id.

26. See, e.g., Philip Pettit, Freedom as Antipower, 106 ETHICS 576 (1996) [hereinafter Pettit, Freedom

as Antipower] (proposing a neo-republican, or neo-Roman, theory of freedom as non-domination). Other

versions of this theory have been discussed and promoted in PHILIP PETTIT, REPUBLICANISM: A THEORY OF

FREEDOM AND GOVERNMENT (1999); QUENTIN SKINNER, HOBBES AND REPUBLICAN LIBERTY (2008); QUENTIN

SKINNER, LIBERTY BEFORE LIBERALISM (1998); Philip Pettit, Keeping Republican Freedom Simple: On a

Difference with Quentin Skinner, 30 POLITICAL THEORY 339–56 (2002); Philip Pettit, The Instability of

Freedom as Noninterference: The Case of Isaiah Berlin, 121 ETHICS 693 (2011); and Quentin Skinner,

Address at Harvard University at Tanner Lectures on Human Values: The Paradoxes of Political Liberty (Oct.

24 & 25, 1984).

27. See, e.g., Kent Greenawalt, Rationales for Freedom of Speech, in INFORMATION ETHICS: PRIVACY,

PROPERTY, AND POWER 278 (Adam D. Moore ed., 2005); ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE

CONSTITUTIONAL POWERS OF THE PEOPLE (Harper 1960); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM


inform the way we think about the proper relationship between these

competing values. Thus, the nature, quality, security, and amount of

information implicated in these situations can have important ramifications for

how we think about freedom—and how much freedom we ought to let slip

away for the sake of security. I also conclude that current wiretapping laws

and policies that restrict the First Amendment rights of citizens to document

and report governmental abuses of power in public spaces, especially when

officers are granted the right to film the public without similar restrictions,

poses a threat to free speech rights and individual freedom more broadly.

This Article also explores how, and whether, citizen journalists are in fact

faced with tragic questions in this context and, if so, how they may go about

navigating solutions and decision-making when confronted with these moral

dilemmas. I propose a theory of information privacy that recognizes some

legitimate expectations of privacy in public spaces while also respecting First

Amendment rights to gather and disseminate information about government

conduct. I will also address questions related to respect (particularly what

respect should be owed to the police officers and other subjects of recordings

in public spaces), and what moral obligations citizen journalists may (or may

not) have to respect and obey the law.

In addition, defining informational privacy as the right to control access

to and uses of personal information28

provides one philosophically defensible

way to protect some privacy rights in public spaces. This definition explicitly

recognizes that individuals should have some rights to control not just access

to personal information, but also some subsequent uses of that information,29

even after some disclosures to third parties or voluntarily entering a public

space. However, defining privacy this way also forces us to consider when (or

whether) a person’s physical presence in a public space ought to act as an

explicit or implied waiver of certain privacy rights (as well as which rights

ought to be waived and which ought to be retained in particular

circumstances), and whether we should reach a different conclusion when the

person is acting in an official capacity as a police officer.

Even if personal information privacy rights ought to protect individual

activity in public spaces to some degree (and I argue they should), the

OF FREE SPEECH (Free Press 1993); Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of

Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1 (2004); Jack M. Balkin, The First

Amendment Is an Information Policy, 41 HOFSTRA L. REV. 1 (2013); Jack M. Balkin, The Future of Free

Expression in a Digital Age, 36 PEPP. L. REV. 427 (2009); William J. Brennan, The Supreme Court and the

Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1–20 (1965); Alexander Meiklejohn, The

First Amendment Is an Absolute, 1961 SUP. CT. REV. 245–66 (1961); Eugene Volokh, Freedom of Speech and

Information Privacy: The Troubling Implications of a Right to Stop People from Speaking about You, 52

STAN. L. REV. 1049 (2000); Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a

Theory of Free Speech Protection, 97 VA. L. REV. 595 (2011).

28. See ADAM D. MOORE, PRIVACY RIGHTS: MORAL AND LEGAL FOUNDATIONS 16 (2010); Adam D.

Moore, Toward Informational Privacy Rights, 44 SAN DIEGO L. REV. 809, 813 (2007).

29. Id.


importance of citizen oversight, personal liberty, and First Amendment rights

to gather and access information about government conduct weigh in favor of a

conclusion that public officials engaged in their official duties (especially in

public spaces) have effectively waived certain privacy interests that ordinary

citizens ought to maintain by virtue of their positions as public servants. This

conclusion is particularly important when applied to law enforcement and

other government agents who have the power to coerce, detain, arrest, and

otherwise interfere significantly with personal liberty interests.

II. CITIZEN MEDIA, PARTICIPATORY JOURNALISM,

AND THE RIGHT TO RECORD

In the early hours of the morning on March 3, 1991, George Holliday,

from his nearby apartment, covertly recorded Los Angeles Police Department

officers beating Rodney King with batons.30

After Holliday sent a copy of the

nine-minute video recording to a local television station, it became a media

sensation.31

The public outcry over the incident and claims of race-based

police brutality—driven in large part by the widespread distribution and

consumption of the recording—ultimately contributed, a year later (after the

officers were acquitted of all state law charges), to large-scale riots in Los

Angeles and smaller demonstrations in other locations around the country.32

Since 1991, the availability of low-cost handheld video cameras has

skyrocketed, as have the number of citizen-produced recordings of alleged

police brutality.33

In many cases, these videos quickly find their way onto

prime-time television as well as video-sharing websites like YouTube and are

discussed in a wide variety of traditional and emerging media, from print and

online newspapers to blogs, Twitter feeds, and Facebook pages.34

More recently, in the early morning hours of January 1, 2009, a number

of Bay Area Rapid Transit passengers recorded Officer Johannes Mehserle

shooting a young man named Oscar Grant in the back while Grant was lying

on the subway platform, supposedly resisting restraint while the officers were

30. Juan Gonzalez, George Holliday, the Man with the Camera Who Shot Rodney King While Police

Beat Him, Got Burned, Too, N.Y. DAILY NEWS (June 19, 2012, 11:58 PM), http://www.nydailynews.com/

news/national/george-holliday-man-camera-shot-rodney-king-police-beat-burned-article-1.1098931.

31. Steve Myers, How Citizen Journalism Has Changed Since George Holliday’s Rodney King Video,

POYNTER (Mar. 3, 2011, 12:51 PM), http://www.poynter.org/latest-news/top-stories/121687/how-citizen-

journalism-has-changed-since-george-hollidays-rodney-king-video/.

32. Id.

33. See generally Kyle Vanhemert, Are Cameras the New Guns?, GIZMODO (June 2, 2010, 5:00 PM),

http://gizmodo.com/5553765/are-cameras-the-new-guns (citing numerous occasions of citizens using video

cameras to record alleged police brutality).

34. See Antony & Thomas, supra note 4, at 1284 ("[R]ecent technological developments such as Web

2.0 subvert the 'vertical, top-down, passive, one-way flow of information' that is characteristic of conventional

media, allowing for alternative discourse through blogs, podcasts, virtual reality (e.g. Second Life),

collaborative technology (e.g. Wikipedia), social networking sites (e.g. Facebook, Myspace), and video-

sharing sites (e.g. YouTube)." (internal citation omitted)).


attempting to place handcuffs on him.35

Multiple recordings of the killing

were uploaded to YouTube, despite officer attempts to confiscate cameras in

the vicinity, and the reaction to the videos and news reports fueled both

peaceful and violent protests in the days following the incident.36

In 2010,

when Mehserle was convicted of involuntary manslaughter rather than the

murder to which he was accused, additional riots broke out across the city of

Oakland.37

In a dozen U.S. states, wiretapping (or eavesdropping) statutes prohibit

citizens from making audio or audio-visual recordings of conversations

without getting consent from all parties to the recorded conversations.38

These

state laws vary in their scope, but have been used frequently in recent years to

arrest, detain, and harass photographers, including citizens and members of the

credentialed press.39

Apparently, the purpose for which officers or prosecutors

invoke these statutes to stop citizens from recording their encounters with

police officers is driven by a desire to restrict subsequent disclosure, and

potential misuse, of information that might subject an officer to possible

censure. Appeals to privacy in public encounters are fairly far-fetched, and

because some of the statutes cover activity in public as well as private spaces,

their reach is much broader than needed to protect against invasions of privacy.

Many of these laws would have made recordings like those described above

illegal (at least as far as conversations or speech were part of the recordings).

In the United Kingdom, an anti-terrorism law similarly used by police officers

to detain and question photographers has recently been held to be in violation

of the European Convention for Human Rights and Fundamental Freedoms.40

In a landmark case in 2011, the First Circuit held that the First

Amendment clearly gave citizens the right to record police officers and other

public officials while they were performing their official duties in public

spaces, as long as the citizens did not interfere with the police officer’s

35. Id. at 1281.

36. See Jesse McKinley, Officer Guilty in Killing That Inflamed Oakland, N.Y. TIMES (July 8, 2010),

www.nytimes.com/2010/07/09/us/09verdict.html ("City officials were worried about a reprise of the 2009 riots

that erupted in downtown Oakland . . . after Mr. Grant's shooting, which was captured on cellphone video and

widely disseminated on the Internet.”).

37. See Ewen MacAskill, Oakland Riots After Verdict in Police Shooting of Oscar Grant, GUARDIAN

(July 9, 2010, 12:35 PM), www.theguardian.com/world/2010/jul/09/oakland-riots-oscar-grant-shooting-verdict

(discussing how rioters trashed parts of Oakland in protest against the verdict).

38. E.g., CAL. PENAL CODE § 632 (West 2009); DEL. CODE ANN. tit. 11, § 1335(a) (2010); FLA. STAT.

§ 934.03 (2010); HAW. REV. STAT. §711-1111 (2010); 720 ILL. COMP. STAT. 5/14-2 (2010); KAN. STAT. ANN.

§ 21-4001 (2010); MASS GEN. LAWS ch. 272, § 99 (2010); MD. CODE ANN., CTS. & JUD. PROC. §10-402

(West 2010); MICH. COMP. LAWS § 750.539c-d (2010); MONT. CODE ANN. § 45-8-213(1)(c) (2009); N.H.

REV. STAT. ANN. § 570-A:2 (2010); 18 PA. CONS. STAT. ANN. § 5704(4) (West 2010); WASH. REV. CODE

§ 9.73.030 (2010).

39. See John Vibes, MD Cops Assault Man for Filming and Say "You Have No Freedom of Speech,"

INTELLIHUB NEWS (Feb. 25, 2014 6:38 PM), http://intellihub.com/md-cops-assault-man-filming-say-freedom-

speech/ (discussing how a man was arrested for filming police assault several individuals).

40. Gillan v. The United Kingdom, 2010 Eur. Ct. H.R. 28.


legitimate work and made the recordings overtly (not secretly).41

In that case,

Glik v. Cunniffe, a Boston attorney named Simon Glik was walking through

the Boston Common when he saw officers using what he thought was

unnecessary force to affect an arrest.42

As a consequence, Glik pulled out his

smartphone and made a video recording of the incident.43

When one of the

officers approached him, asking whether he was taking photographs, Glik

indicated that he was actually recording video and audio of the events.44

Subsequently, the officers arrested Glik and charged him with a number of

crimes, including violation of the Massachusetts state wiretapping statute.45

After the public prosecutor dropped the charges against him, Glik filed a civil

rights lawsuit against the city, officers, and the police department.46

The court

found that the right of individuals to film public officials in public spaces was

a “fundamental and virtually self-evident” right under the First Amendment.47

According to the court, “though not unqualified, a citizen’s right to film

government officials, including law enforcement officers, in the discharge of

their duties in a public space is a basic, vital, and well-established liberty

safeguarded by the First Amendment.”48

A year after Glik, the Seventh Circuit enjoined the Cook County State’s

Attorney from using the Illinois wiretapping law to arrest members of the

ACLU for recording police officers as part of a police accountability

program.49

The Illinois statute prohibits audio recordings even where officers

do not maintain any expectation of privacy in their conversations, and carries

steep criminal penalties as a class 1 felony—equivalent to sexual offenses such

as rape.50

In that case, ACLU of Illinois v. Alvarez,51

the court held that the

statute, as written and applied to the facts of the case, “likely violates the First

Amendment’s free-speech and free-press guarantees” and remanded the case to

the district court.52

A few other decisions in other parts of the country also

protect the public’s right to record officers in public,53

but reports of officers

arresting photographers on eavesdropping charges continue to proliferate

41. Glik v. Cunniffe, 655 F.3d 78, 86–88 (1st Cir. 2011).

42. Id. at 79–80

43. Id. at 80.

44. Id.

45. Id.

46. Id.

47. Id. at 85.

48. Id.

49. ACLU v. Alvarez, 679 F.3d 583, 583 (7th Cir. 2012).

50. 720 ILL. COMP. STAT. 5/14-2 (2012).

51. Alvarez, 679 F.3d at 583.

52. Id. at 586–87.

53. See generally Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First

Amendment protects the right to gather information about what public officials do on public property, and

specifically, a right to record matters of public interest.”); Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th

Cir. 1995) (finding that recording in public places may be protected under the First Amendment); State v.

Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992). New Jersey state courts have also recognized a right of

citizens to record police. Ramos v. Flowers, 56 A.3d 869, 879–80 (N.J. Super. Ct. App. Div. 2012).


around the country54

—in some cases, even in jurisdictions where police

department orders have expressly stated that officers should not arrest citizens

for recording.55

In one case, a citizen recorded a conversation with an official

while making a public records request and when the citizen brought the

recording to the department’s attention, claiming the recording showed that his

request was inappropriately handled, the police department arrested him for

violating the eavesdropping law.56

Citizens have also frequently been arrested

for filming their encounters with police during traffic stops or while witnessing

arrests in a variety of situations.57

Recent controversy surrounding recordings made in public spaces—and

the eventual posting of such recordings to the Internet—have not been limited

to recordings of police officers. Reports of online vigilantism and public

shaming of private individuals have also begun to claim widespread

notoriety.58

So-called Internet vigilantes have recorded images and video of

people doing stupid things and posted them to the Internet, or have identified

individuals from already-posted videos or images.59

The subjects of these

recordings have been publicly shamed, in many cases their personal and

contact information has been posted online, resulting in harassment,

embarrassment, or detention by government authorities.60

In one case, a young

South Korean woman was nicknamed the “dog poop girl” after she was

54. E.g., Emily Gurnon, Little Canada Man Must Stand Trial in Videotaping of Ambulance Crew,

TWINCITIES.COM (Aug. 20, 2013), http://www.twincities.com/crime/ci_23902450/little-canada-man-who-

videotaped-medical-call-will; Tal Kopan, Another Lawsuit Filed Over Police Recording, POLITICO (Jan. 17,

2013), http://www.politico.com/blogs/under-the-radar/2013/01/another-lawsuit-filed-over-police-recording-

154488.html; Press Release, ACLU-PA, ACLU-PA Files First in Series of Lawsuits Over Illegal Arrests for

Observing and Recording Philadelphia Police (Jan. 16, 2013), available at http://www.aclupa.org/news-

/2013/01/16/aclupa-files-first-series-lawsuits-over-illegal-arrests-for-observing-and-recording-philly-police;

Press Release, ACLU-PA, ACLU Files Suit On Behalf of Fayette County Man Arrested for Recording Police

Officer (July 19, 2012), available at http://www.aclupa.org/news/2012/07/19/aclu-files-suit-behalf-fayette-

county-man-arrested-recording-police-officer.

55. See Fenton, supra note 19 (discussing how Charles Grapski was arrested for tape-recording an

interview with the city manager).

56. See Margaret Kohn, Unblinking: Citizens and Subjects in the Age of Video Surveillance, 17

CONSTELLATIONS 572, 572–88 (2010) (discussing the Grapski case).

57. See Cops Arrest Priest For Filming Them, CBS NEWS (Mar. 13, 2009), http://www.cbsnews.com/

news/cops-arrest-priest-for-filming-them (discussing the case of a Roman Catholic priest who was confronted

and arrested by an officer for using a video camera to record the officer’s actions).

58. See Bronwen Clune, Digital Vigilantism: Think Before Putting Pictures of ‘Wrongdoing’ Online,

GUARDIAN (Nov. 28, 2013), http://www.theguardian.com/commentisfree/2013/nov/29/digital-vigilantism-

think-before-pictures-of-wrongdoing-online ("There are thousands of Facebook pages and many standalone

websites dedicated to accusing people of just about anything you care to think about.").

59. See Alexis C. Madrigal, Hey Reddit, Enough Boston Bombing Vigilantism, ATLANTIC (Apr. 17,

2013), http://www.theatlantic.com/technology/archive/2013/04/hey-reddit-enough-boston-bombing-

vigilantism/275062/ ("[V]igilantes have organized themselves on Reddit for a manhunt. They want justice

served. And they're openly debating suspects on the site. They're gonna solve the case!").

60. See Samer Kalaf, Hackers Take Over Steubenville High School Football Team’s Website, Threaten

to Release Personal Information of People Involved in Alleged Rape Case, DEADSPIN (Dec. 25, 2012),

http://deadspin.com/hackers-take-over-steubenville-high-school-football-tea-5971165 (discussing how hackers

intended to release addresses, social security numbers, and phone numbers of the alleged attackers if they

refuse to apologize to the alleged victims).


photographed refusing to clean her dog’s mess on the floor of a subway car.61

The image was posted online, and within days the woman’s name and address

were posted as well. She was subjected to vicious online ridicule and

apparently also withdrew from university and considered suicide because of

the impact the story had on her personal life.62

Thus, questions about what conduct is morally acceptable when recording

others in public spaces—and what one should do with captured footage or

images—is a much broader question than that answered in this Article.

However, the conflict between certain state wiretapping laws and a growing

body of First Amendment case law provides an important context within which

to frame this discussion. Filming police officers and other public officials

raises additional and important constitutional issues about what right citizens

should have to document and disseminate information about government

conduct and the state’s ability to prohibit recordings by private citizens. These

recordings have proved to be an important and vital tool to hold officials

accountable for gross misconduct and the violation of citizens’ rights, but the

remaining legal and practical uncertainty and patchwork nature of this state

law problem means that citizens remain at substantial risk when deciding

whether to pull out their smartphone and record the scenes unfolding around

them. This is a risk that also implicates an improper intrusion into individual

liberty.

III. PRIVACY AND EXPRESSION AS ASPECTS OF POLITICAL LIBERTY

In the following Part, I outline and contrast the basic parameters of two

competing conceptions of political liberty, the liberal notion of negative liberty

influenced by Isaiah Berlin and the neorepublican conception espoused by

Philip Pettit and Frank Lovett.63

I then explain my preferred approach to

conceptualizing freedom.64

In the subsequent Parts, I explain why I believe

both privacy and First Amendment values are most appropriately protected as

aspects of liberty.

61. Jonathan Krim, Subway Fracas Escalates Into Test of the Internet’s Power to Shame, WASH. POST

(July 7, 2005), www.washingtonpost.com/wpdyn/content/article/2005/07/06/ AR20050706-01953.html.

62. Id.

63. Republican and neorepublican political philosophy, of course, have no necessary connection to the

Republican political party or its politics.

64. This analysis builds off of and draws from the author’s other research examining various aspects of

surveillance against the requirements of the neorepublican conception of freedom. E.g., Bryce Clayton

Newell, Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition

Systems, Information Privacy, and Access to Government Information, 66 ME. L. REV. (forthcoming 2014)

[hereinafter Newell, Local Law Enforcement]; Bryce Clayton Newell, The Massive Metadata Machine:

Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe, 9 I/S: J. L. & POL’Y FOR INFO. SOC’Y

(forthcoming 2014) [hereinafter Newell, Massive Metadata Machine], available at http://papers.ssrn.com/

sol3/papers.cfm?abstract_id=2339338.


A. Liberty

In Isaiah Berlin’s seminal essay on the topic of political liberty, Two Concepts of Liberty,

65 Berlin outlines the trajectory of two different

conceptions of liberty, what he calls “negative” and “positive” liberties. On

one hand, negative liberty “is simply the area within which a [person] can act

unobstructed by others.”66

A person’s degree of freedom rests on whether, or

how thoroughly, that person is prevented from doing something by another

person.67

A certain level of interference by another with one person’s freedom

to do something, in Berlin’s view, can equate to coercion or slavery, and thus

ought to be avoided.68

On the other hand, Berlin defines positive liberty as a

form of self-mastery; to have one’s decisions depend on no other person or any

other force.69

Despite some claims that this distinction (sometimes referred to

as “freedom from” and freedom to”) doesn’t hold up,70

Berlin provides an

insightful tracing of the use of positive ideas about liberty that informed the

development of totalitarian regimes like the Nazis and former USSR.71

Berlin’s conception of negative liberty has provided the basis for much

contemporary work on philosophical liberty in the liberal tradition.72

Berlin

himself noted that his version of negative liberty was not “logically . . .

connected with democracy or self-government,” although democratic self-

government may admittedly guarantee liberty better than other forms of rule.73

“The answer to the question ‘Who governs me?’”, Berlin states, “is logically

distinct from the question ‘How far does the government interfere with me?’”74

Other writers have distinguished between “effective freedom” and “formal

freedom,” as a way to clarify Berlin’s distinctions between positive and

negative and to make the point that the absence of restraint (defined in terms of

legal restraints) does not always guarantee the actual ability of an individual to

do something he or she is legally entitled to do (for example, a person may not

be able to take an expensive international vacation because of economic

hardship).75

On one hand, negative freedom is concerned with the absence of

restraint (or interference), while positive freedom is concerned with equalizing

the effective freedoms of everyone in a society (e.g., international vacations

65. ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (Oxford Univ. Press 1969);

see also ADAM SWIFT, POLITICAL PHILOSOPHY: A BEGINNER’S GUIDE FOR STUDENTS AND POLITICIANS 52–54

(Polity 2006).

66. BERLIN, supra note 65, at 122.

67. Id.

68. Id.

69. Id. at 146.

70. SWIFT, supra note 65, at 254.

71. BERLIN, supra note 65, at 144; SWIFT, supra note 65, at 51.

72. See generally Marshall Cohen, Berlin and the Liberal Tradition, 10 PHIL. Q. 216, 216–27 (1960)

(discussing Berlin as an influence for liberal tradition approach to philosophy).

73. BERLIN, supra note 65, at 177.

74. Id.

75. SWIFT, supra note 65, at 55.


might be assured by a state mandating a certain level of basic income). Some

forms of positive freedom might also privilege the value of political

engagement and self-government, as opposed to viewing laws as an

interference—whether justified or not—on personal liberty.76

In recent decades, republicanism, as an alternative to liberalism, has

received renewed academic attention. Philip Pettit, a champion of one form of

republicanism, often termed neorepublicanism, conceptualizes freedom as the

opposite of “defenseless susceptibility to interference by another”—or put

more simply, non-domination.77

The power to remove the potential for

domination is Pettit’s notion of “antipower.”78

This proposition is part of a

larger neorepublican research agenda based on three primary tenants:

(1) individual freedom (conceptualized as freedom of nondomination); (2)

limited government power over its citizens based on a mixture of

constitutionalism and the rule of law (with an emphasis on the importance of

the free state promoting the freedom of its citizens without dominating them);

and (3) a vigilant commitment by citizens to preserve the freedom preserving

structure and substance of their government through active democratic

participation.79

Contrary to Berlin’s account of negative liberty—that a person is free to

the extent that no other entity actually interferes with that person’s activity—

Pettit’s neorepublican position does away with the requirement of actual

interference, focusing on eliminating the danger (or potential danger) of

arbitrary interference from others.80

Rather than predicating freedom on ideas

of self-mastery, autonomy, or a person’s ability to act in accordance with their

higher-order desires, an account of Berlin’s positive liberty, neorepublican

theory is more concerned with ensuring the ability of the people to self-govern,

by reducing domination.81

Pettit bases his account on the idea that the opposite of freedom is slavery

(or the subjugation to arbitrary exercise of power).82

Pettit is concerned that a

conception of liberty limited to noninterference restricts our potential for

appropriate emancipation from domination because it views the slave under a

benevolent master as having a high degree of liberty.83

Additionally, the

noninterference view problematizes the application of law, as even general,

freedom-preserving restrictions built into the rule of law constitute interference

76. Id. at 64.

77. Pettit, Freedom as Antipower, supra note 26, at 576–77.

78. Id.

79. Frank Lovett & Philip Pettit, Neorepublicanism: A Normative and Institutional Research Program,

12 ANN. REV. POL. SCI. 11, 11 (2009).

80. Frank Lovett, Republicanism, STAN. ENCYCLOPEDIA PHIL. (May 18, 2010),

http://plato.stanford.edu/archives/spr-2013/entries/republicanism/.

81. Id.

82. Pettit, Freedom as Antipower, supra note 26, at 577; Lovett, supra note 80, at 5.

83. Pettit, Freedom as Antipower, supra note 26, at 577–78.


with absolute liberty (for example, the penalization of premeditated murder).84

According to its proponents, neorepublican political theory owes its

origins to the experiences of the early Roman republic, and has been

influenced and adopted by early figures such as Machiavelli, Jefferson, and

Madison, and, more recently, by writers like Quentin Skinner and Philip

Pettit,85

although the precise historiography is still somewhat controversial.86

Frank Lovett and Philip Pettit argue that their version of neorepublicanism has

been adapted from what has been called “classical republicanism” to

distinguish it from other, more communitarian, approaches.87

Lovett also

states that since political liberty ought to be “understood as a sort of structural

relationship that exists between persons or groups, rather than as a contingent

outcome of that structure,” freedom is properly seen “as a sort of structural

independence—as the condition of not being subject to the arbitrary power of a

master.”88

In response to this conception of domination as the antithesis of liberty,

the neorepublican project places a great premium on emancipation—through

balancing power and limiting arbitrary discretion—and active political

participation. Importantly, reversing roles would not solve the problem of

domination, but would merely relocate it.89

Fairly allocating power to both

sides, on the other hand, does not just merely equalize the subjugation; if both

sides—say the people and their government—may interfere with the other’s

affairs, then neither may act with impunity since the other may exact

something in return.90

Thus, “neither dominates the other.”91

This is an

exemplification of what Pettit terms “antipower.”92

According to Pettit,

“[a]ntipower is what comes into being as the power of some over others—the

power of some over others in the sense associated with domination—is

actively reduced and eliminated.”93

Antipower, then, subjugates power and, as

a form of power itself, allows persons to control the nature of their own

destiny.94

In this sense, the “person enjoys the noninterference resiliently”

because they are not dependent on the arbitrary use of power, precisely

because they have the power to “command noninterference.”95

Against this backdrop of political philosophy, I argue that both privacy

84. Id.

85. Lovett & Pettit, supra note 79, at 12 (“Neorepublicanism has its origins in the historiographic works

of Fink (1945), Robbins (1959), Pocock (1979), Sellars (1975), and Sellers (1994) . . . .”). Neorublicanism

also has origins in the works of Skinner. Id. at 13.

86. Id. at 13.

87. Id. at 12.

88. Lovett, supra note 80, § 1.2.

89. Pettit, Freedom as Antipower, supra note 26, at 588.

90. Id.

91. Id.

92. Id.

93. Id.

94. Id. at 589.

95. Id.


and First Amendment values are important aspects of liberty because of their

ability to shield individuals and groups from both actual interference and

domination. That is, they are each distinctly valuable as independent rights

insofar as they are instrumental to effectuating and preserving liberty.

Informational privacy rights restrict the ability of others (including the state) to

collect and use personal information about a person (a form of power), thus

reducing the possibility for interference. Robust rights of free speech, belief,

and association, with their associated limits on the state’s ability to interfere

with individual choice and action, similarly support this view of freedom.

However, because I am defining these values as aspects of liberty, with an

emphasis on limiting domination, the benefits of protecting these individual

rights are tied directly to the structural institutions and processes that allow for

self-governance by the people and, ultimately, render government action non-

arbitrary (or, at least, less arbitrary). Privacy rights and First Amendment

protections are much less meaningful if the public has no ability to command

noninterference in the first place (i.e. government could alter these rights on a

whim without fear that the people could overrule the government action). On a

related note, this view also leaves some room for a society to determine for

itself, through democratic deliberation, how to best balance speech and privacy

interests, especially in regard to prospective intrusions by private actors, as

opposed to state actors. This is true because, for example, a society could

establish a number of balancing tests that would solve the problem of arbitrary

interference (domination).

B. Privacy

Fundamentally, I agree with Westin that, “the achievement of privacy for

individuals, families, and groups in modern society has become a matter of

freedom rather than the product of necessity.”96

Privacy has been defined in a

multitude of ways, both normatively and descriptively.97

Solove goes so far as

to claim that defining privacy is a fruitless task because, like liberty, privacy

means so many things to different people.98

The umbrella term “privacy”

contains both the concept of what privacy is and how it should be valued, as

well as a (generally) narrower right to privacy which outlines the extent to

96. ALAN F. WESTIN, PRIVACY AND FREEDOM 21–22 (Atheneum 1968).

97. See MOORE, supra note 28, at 16 (explaining that the meaning of privacy changes depending on

whether one gives a descriptive or normative definition of privacy); DANIEL SOLOVE ET AL., INFORMATION

PRIVACY LAW 40–51 (Aspen Publishers 2d ed. 2006) (includes drawing from examples and additional

citations).

98. See Daniel Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477, 480 (2006) (explaining how

the ambiguous definition of privacy often creates policy problems because it is difficult to articulate what the

right of privacy is); see also Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2087 (2011)

(explaining that the value of privacy is so complex that he wonders if it can be explained at all); ANITA L.

ALLEN, PRIVACY LAW AND SOCIETY 3 (West 2011).


which privacy is legally protected.99

Westin stated that “privacy is the

voluntary and temporary withdrawal of a person from the general society

through physical or psychological means, either in a state of solitude or small-

group intimacy or, when among larger groups, in a condition of anonymity or

reserve.”100

Privacy has also been conceptualized in reductionist (privacy as

an element of another more fundamental right) and non-reductionist (privacy

as a distinct right in itself) terms.101

In response to this ambiguity, Allen has described five different meanings

of privacy (physical, informational, decisional, proprietary, and

associational),102

and Solove has developed a taxonomy of informational

privacy violations (broken into four major categories: collection, processing,

dissemination, and invasion).103

These classifications are undoubtedly helpful

in understanding the broad scope of what is meant by “privacy,” or how

privacy has, in fact, been protected in the past. However, I believe a normative

theory of privacy, or liberty for that matter, can be very useful for thinking

about what privacy rights ought to encompass (or at least what a system of

democratic governance should provide for an engaged citizenry to determine

for themselves what choices regarding privacy they wish to live under).

In this project, I am committed to defining informational privacy as the

right to control access to and uses of personal information.104

This normative

definition includes the right to control both initial and subsequent uses of

personal information (e.g. a person may consent to the use of personal

information for certain purposes by specified entities, but may object to further

sharing and subsequent use for additional purposes outside the scope of the

original consent). This right to privacy should also be considered a moral and

a legal right. It should have legal “teeth,” and individuals should be provided

opportunities to seek legal redress when the right is violated. Westin famously

defined privacy as “the claim of individuals, groups, or institutions to

determine for themselves when, how, and to what extent information about

them is communicated to others.”105

This definition is similar in many respects

to the one I endorse, and Westin’s work contributes valuably to my conception

of privacy.106

On its face, Westin’s definition does not necessarily extend to

subsequent use of information previously disclosed or communicated, but

limiting the extent of communication could also arguably encompass more

than just initial disclosure.107

It is phrased in terms of a moral (or legal) claim

99. Hyman Gross, The Concept of Privacy, 42 N.Y.U. L. REV. 34, 36 (1976); DANIEL SOLOVE ET AL.,

supra note 97, at 39.

100. WESTIN, supra note 96, at 7.

101. MOORE, supra note 28, at 14–16.

102. ALLEN, supra note 98.

103. SOLOVE ET AL., supra note 97.

104. Moore, supra note 28, at 812.


106. Id.

107. Id.


(a normative position), but its inclusion of groups and institutions places it

beyond the ambit of merely an individual right.108

Defining privacy in terms

of control also supports self-development and autonomy.109

As I stated earlier, I am claiming that privacy is most appropriately

protected as an aspect of political liberty. This is admittedly reductionist. As

such, I claim that privacy is largely a culturally relative socio-political choice

vis-à-vis the legitimate exercise of power of the state (or other persons) over

the individual. In practice, it is clear that the right to privacy (in some current

instantiations) is instrumentally connected with restraining government power

(e.g. consider the Fourth Amendment prohibition on unwarranted searches and

seizures).110

Helen Nissenbaum has similarly noted that, “privacy is an

important means by which individuals may sustain power, liberty, and

autonomy against potentially overwhelming forces of government.”111

This

approach also extends to protecting individuals from domination by other

private parties, and is not restricted to government domination.112

However,

Adam Moore suggests that a reductionist account of privacy “might mean

jettisoning the idea” of a distinct right to privacy altogether in favor of

focusing on the more fundamental concept—liberty, in this case.113

Frederick

Davis has also argued that a reductionist account may also make advocating

for privacy rights irrelevant as long as more fundamental rights are adequately

protected.114

Moore is somewhat critical of the reductionist premise,

suggesting that “it is unclear whether or not privacy is reducible to more

‘basic’ rights” (though he does not object outright), but he does note the “close

connections” between privacy and liberty.115

In response to these critiques of reductionist thinking regarding privacy, I

wish to note that my preference for protecting informational privacy as an

element of liberty does not negate the possibility that a certain, core, and

distinct fundamental right of privacy might exist. Indeed, as Alan Westin

explains, humanity may share some basic universal need for privacy (although

it may surface differently in various cultural contexts), and this might also

extend to other animal species as well.116

This may well exist as an

independent human value that ought to be protected by law (as a fundamental

human right). However, this need for some basic level of privacy protections

108. Id.

109. MOORE, supra note 28, at 17.

110. U.S. CONST. amend. IV.

111. Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public,

17 L. & PHIL. 559, 569 (1998).

112. See id. (“[T]his form of privacy protection emphasize the importance of a realm to which people

may go, from which others are excluded.”).

113. Moore, supra note 28, at 814.

114. Id. at 15; Frederick Davis, What Do We Mean by ‘Right to Privacy’?, 4 S.D. L. REV. 1, 20 (1959).


116. WESTIN, supra note 96, at 8–11; see also Adam D. Moore, Privacy, Speech, and the Law, 22 J.

INFO. ETHICS 21, 22–23 (2013).


is arguably very limited in comparison to modern conceptions of privacy (and

it is likely to be at least partially related to physical/spatial privacy concerns,117

which are outside my focus here on information privacy). In modern society,

“our contemporary norms of privacy are ‘modern’ and ‘advanced’ values

largely absent from primitive societies of the past and present.”118

These

“advanced” values are more likely embedded in the “socio-political realm,”119

and, I would argue, most coherently protectable as elements of political liberty

rather than as distinct human rights in and of themselves. This characterization

allows us to agree on a possible core, universal, right to privacy (which

humans may share with other animals, and across different cultures), while

recognizing that most privacy interests are actually culturally and individually

distinct choices about values. They are, then, essentially socio-political choices and are best protected by democratic civic participation, self-

governance by the people, and the promotion of liberty (aka nondomination)

buttressed by constitutional guarantees of equality, due process, and limits on

pure majoritarian decision-making to preserve minority rights. In this way,

these political protections are also likely to cover the more basic privacy rights.

This result, in my view, also helps account for varying valuations of privacy

across time and cultures.

That said, I disagree with Davis’s conclusion that reductionist thinking

eliminates the need to advocate for privacy rights in and of themselves.120

Privacy, as I define it, is a particular (and particularly useful) instrumental

means to support the goal of maintaining individual liberty from government

intrusion, interference, and/or domination (or from private actors, for that

matter). Privacy is a “core value that limits the forces of oppression.”121

Thus,

I agree wholeheartedly with Moore when he claims that “even if the

reductionist were correct, it does not follow that we should do away with the

category of privacy rights” or “dispense with talk of rights and frame our moral

discourse in these more basic terms.”122

Talks of liberty, without including

privacy as a specific element of concern, shortchange the very nature of such

liberty itself. Thus, I believe this conception of privacy is consistent with the

claim that “privacy . . . is a necessary condition for human well-being or

flourishing.”123

Conceptualizing privacy as a necessary and freedom-

preserving right protects individuals from intrusions well beyond the basic

privacy interests in territoriality and a need for space away from

117. See MOORE, supra note 28, at 22 (discussing the right to control “access to one’s body, capacity, and

powers”); see generally WESTIN, supra note 96, at 9–13 (discussing privacy in the animal and primitive

worlds).


119. Id. at 21.

120. Davis, supra note 114, at 15.


122. Id. at 16.

123. Id. at 3.


overcrowding.124

Tied to freedom, privacy rights should also be protected

against expression to a greater extent than American law currently suggests.

C. Free Speech/Expression and the First Amendment

The First Amendment states, in part: “Congress shall make no law . . .

abridging the freedom of speech . . . .”125

Just as privacy is subject to numerous definitions and overarching

theoretical accounts, the theoretical basis for a right to free speech and

expression (and broader First Amendment rights, such as the rights of

assembly, association, and belief) has also been much debated. Greenawalt

provides a good account of the major bases for protecting free speech,

categorized as consequentialist or non-consequentialist reasons.126

Of these, a

few consequentialist justifications are particularly relevant to my approach to

understanding the proper role of the First Amendment’s free speech guarantee.

There are more possible justifications than those presented below, as I have

chosen to limit my discussion to those I feel are most clearly implicated by my

overall theoretical commitments. I also note that these justifications are all

consequentialist justifications, which should not be surprising given my

reductionist account of privacy and free speech as instrumental to the political

concept of liberty.

First, the basic consequentialist justification for free speech is the

importance of “truth discovery.”127

This justification, in my view, holds

importance to both liberal and republican conceptions of free speech. The idea

that an open marketplace of ideas, where individuals have the ability to present

ideas without risk of censure, may stimulate debate, critical thought, and the

eventual collective discovery of truth is obviously important, regardless of

whether or not we ought to limit the protected sphere to only those ideas

related to collective self-governance (and whether or not “truth” always rises to

the top). Mill, in particular, was concerned with the potential for governments

to suppress communication, because even attempts to suppress “false”

information may well also capture true or partly true information and would

hamper the development of the open marketplace of ideas.128

To a great

extent, this viewpoint has been captured by the liberal tradition, and Volokh’s

passionate defense of free speech in the face of potential privacy restrictions

124. See WESTIN, supra note 96, at 8–9 (describing how both humans and animals require periods of

individual seclusion and exhibit tendencies towards territoriality); MOORE, supra note 28, at 6.

125. U.S. CONST. amend. I.

126. Greenawalt, supra note 27, at 280–81.

127. Id. at 281; see also Whitney v. California, 274 U.S. 357 (1927) (Brandeis. J., concurring); JOHN

STUART MILL, ON LIBERTY 14 (Dover 2002) (1859) (“If all mankind minus one, were of one opinion, and only

one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than

he, if he had the power, would be justified in silencing mankind.”).

128. MILL, supra note 127, at 14–15.


(which he largely sees as unwarranted and dangerous),129

pushes this

justification close to its limits. To others, such as Solove,130

Meiklejohn,131

Post,132

Baker,133

Sunstein,134

and Reddish,135

speech of merely private

concern, that does not implicate or further efforts to effectuate democratic self-

governance, may be appropriately limited. This view (or actually, views, as

these authors do not always agree) also relies heavily on the truth discovery

justification for free speech, but it places limits on the types of speech that

ought to fall within Constitutional protections.136

Closely connected to (and potentially contained within) the truth

discovery rationale is a second line of reasoning: that free speech provides a

check on abuses of (especially government) authority.137

However, this

checking power extends beyond checking abuse; it also rests on the assumption

that the First Amendment should support the exposure of wrongdoing, which

implicates the right to gather and access information as a predicate for actual

speech. This theory also has ties to the democratic governance theories

described below.

The idea that free speech contributes to the development and maintenance

of democratic rule (as mentioned above) has also been very influential. Some

of these theories can appropriately be termed republican in nature. The

129. Volokh, Freedom of Speech and Information Privacy, supra note 27, at 1122–23.

130. See generally Daniel Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against

Disclosure, 53 DUKE L.J. 967, 967 (2003) (responding “to two general critiques of disclosure protections:

(1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.”);

DANIEL J. SOLOVE ET AL., supra note 97, at 147.

131. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT ix–xiv

(Harper, 1948); MEIKLEJOHN, supra note 27, at 3–7; Meiklejohn, supra note 27, at 255–57.

132. ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT (Harvard

Univ. Press 1995); see generally Robert C. Post, Community and the First Amendment, 29 AZ. ST. L.J. 473,

473 (1997) (discussing “the relationship between . . . the concept of community and the concept of the First

Amendment”); Robert C. Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public

Discourse, 64 U. COLO. L. REV. 1109, 1109 (1993) (arguing that “the view that the essential objective of the

First Amendment is to promote a rich and valuable public debate” is subordinate to the collectivist theory).

133. C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (Oxford Univ. Press 1989); see

generally C. Edwin Baker, The Scope of First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 964

(1978) (discussing “three theories of the scope of speech protected by the First Amendment” including the

“liberty theory”).

134. See SUNSTEIN, supra note 27 (elaborating on concepts of free speech under the First Amendment).

See generally Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255 (1992) (defending the proposition of

“the American tradition of free expression as a series of struggles to understand the relationship between this

conception of sovereignty and a system of free speech”).

135. See generally MARTIN H. REDDISH, THE ADVERSARY FIRST AMENDMENT 5 (Stanford Univ. Press

2013) (discussing First Amendment concepts which rely “on the concept of adversary democracy and the

democratic theory of free expression that grows out of it”); Martin H. Reddish & Abby Marie Mollen,

Understanding Post’s and Meiklejohn’s Mistakes: The Central Role of Adversary Democracy in the Theory of

Free Expression, 103 NW. U. L. REV. 1303, 1306 (2009) (critiquing Meiklejohn’s and Post’s theories “to

illuminate the common understanding of democratic autonomy that underlies both free speech theories and to

propose an alternative in its place”).

136. See supra notes 130–35 and accompanying text.

137. MOORE, supra note 28, at 135; Vincent Blasi, The Checking Value in First Amendment Theory, 2

LAW & SOC. INQUIRY 521, 527 (1977); Greenawalt, supra note 27, at 282–83.


primary democratic theories of the First Amendment have been promulgated

by Alexander Meiklejohn,138

Robert C. Post,139

C. Edwin Baker,140

and Cass R.

Sunstein.141

Martin Reddish has recently provided another democratic theory

to the mix, sharply criticizing the prior two accounts as being too focused on

collectivist cooperation, rather than protecting individual self-interest.142

Reddish advocates an individualistic account of the purposes of the First

Amendment that specifically promotes the individual right to speech and

organize in a person’s own self-interest as a way to incentivize political

participation.143

Meiklejohn and Post, on the other hand, promote more

collectivist and cooperative democratic participation, with differing emphases

on voting and individuals recognizing themselves as self-governing,

respectively, as the ends to be achieved.144

Sunstein places great weight comparing Madison’s conception of

American sovereignty (in the People) with the right of free speech.145

This

right to “freely examin[e] public characters and measures, and of free

communication among the people thereon” is “the only effectual guardian of

every other right.”146

In his view, current First Amendment jurisprudence

“protect[s] speech that should not be protected” because its theoretical basis is

“off the mark” and even threatens democratic efforts of the people to self-

govern.147

Meiklejohn argued that “the First Amendment does not protect a

‘freedom to speak,’” rather, “[i]t protects the freedom of those activities of

thought and communication by which we ‘govern.’”148

Thus, the First

Amendment right to free speech concerns “a public power [and] governmental

responsibility” rather than “a private right.”149

Meiklejohn was primarily

concerned with the power, and obligation, of the people to vote, but also found

that “‘people do need novels and dramas and paintings and poems because

they will be called upon to vote.’”150

In a similar vein, Justice Brandeis, in

Whitney v. California, stated powerfully: Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means . . . that without free speech and assembly discussion would be futile; that with them,

138. See sources cited supra note 131.





143. Id.

144. See sources cited supra notes 132–33.

145. Sunstein, supra note 134, at 256.

146. Id. at 257.

147. Id. at 315.

148. Meiklejohn, supra note 27, at 255.

149. Id.

150. Id. at 263.


discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

151

Jack Balkin argues that the First Amendment’s free speech principle is

about more than just democracy (qua voting), and he would extend it to

encompass what he calls “democratic culture,” meaning, “a culture in which

ordinary people can participate, both collectively and individually, in the

creation and elaboration of cultural meanings that constitute them as

individuals.”152

I read this claim as related to (and potentially consistent with)

Meiklejohn’s extension of free speech rights to the creation of novels, dramas,

paintings, and poems—which Meiklejohn believes are necessary to educated

and informed voting and political participation.153

According to Balkin,

democratic culture is “about individual liberty as well as collective self-

governance.”154

However, if we extend free speech rights to democratic

culture, which I think we should to some extent, rather than just democratic

political participation, we also run the risk of having speech interests butt up

against privacy more frequently.

Thus, in my view, the First Amendment, and freedom of speech in

particular, is inextricably tied up in notions of self-government, truth discovery

(at least when restricted to matters related to governing or, if not, those that do

not invade another person’s privacy), checking potential government abuse or

domination, and, to some extent, allowing individuals to participate in the

creation of culture and meaning within society. That said, we should recognize

robust rights to gather information, the ability to withdraw and contemplate or

discuss openly and debate ideas in public, to think and believe as each sees fit,

and to assemble for these purposes, insofar as such activity does not violate

another person’s rights (including the right to privacy). However, speech that

does not promote, facilitate, or relate to self-government may need to give way

to privacy rights.

IV. POLICING’S NEW VISIBILITY(IES)

Citizen media and the presence of large numbers of recording devices in

many public spaces (especially in densely populated urban areas) has increased

the nature and amount of secondary visibility as more and more police-citizen

encounters are being recorded and broadcast over the Internet to increasingly

wider audiences around the world. This increase in secondary visibility has

151. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

152. Balkin, Future of Free Expression, supra note 27, at 438.

153. Meiklejohn, supra note 27, at 263.

154. Balkin, Democratic Culture, supra note 27, at 31.


been termed “policing’s new visibility.”155

These recordings are available on

many websites, including Youtube, and also include numerous videos recorded

by police department cameras installed in patrol vehicles (“dash-cam”

footage), obtained by citizens under public disclosure requests and uploaded to

the Internet. Thus, as wearable cameras become more widely adopted, officers

and departments will need to confront existing public disclosure laws and the

prediction that such adoption will result in greater numbers of videos being

uploaded to the Internet (this prediction is a simple one: as more footage is

captured, more will get released through existing channels and subsequently

uploaded to the Internet, as long as disclosure laws are not altered).

Traditionally, police (“the most visible of all criminal justice

institutions”)156

were generally visible only through direct interactions with

citizens (and within the view of nearby onlookers). Goldsmith refers to this as

“primary visibility.”157

This visibility also included uniforms and marked

vehicles as markers of official authority and legitimacy. However, the

development of mass media led to a “secondary visibility”158

that allowed

individuals not spatially connected to the scene of original interaction to access

photographic and narrative materials documenting and describing these distant

encounters and subsequently pass judgment. The Rodney King video filmed

by George Holliday in 1991 provides a clear (and now famous) example,

causing outrage and reaction across the United States, as well as

internationally. The shooting of Oscar Grant in San Francisco159

and killing of

Ian Tomlinson in London160

(both captured by citizens wielding cameras

embedded in cellphones and later made available on Youtube, and other

websites), and numerous other examples, demonstrate the increasing power of

these recordings to spread widely and influence public perception and media

coverage of police related events.161

Many of the proposed benefits of officer-

mounted cameras, as well as significant causes for concern, are tied to the

concept of police visibility: its potential to change the dynamics of police-

citizen encounters, to either exonerate or implicate officers in wrongdoing, or

to provide evidence of citizen misconduct.

Police departments have “a clear interest in how their personnel and

activities become visible to others and in what is revealed as a result to

outsiders.”162

This claim has played out in practice. For example, in recent

155. Andrew J. Goldsmith, Policing’s New Visibility, 50 BRIT. J. CRIMINOLOGY 914, 918 (2010) (citing

John B. Thompson, The New Visibility, 22 THEORY, CULTURE & SOC’Y 31 (2005)).

156. S. Chermak & A. Weiss, Maintaining Legitimacy Using External Communication Strategies: An

Analysis of Police–Media Relations, 33 J. CRIM. JUST. 501, 502 (2005); Goldsmith, supra note 156, at 914.

157. Goldsmith, supra note 155, at 914.

158. Id.

159. Antony & Thomas, supra note 4.

160. Greer & McLaughlin, supra note 5.

161. See id. (explaining how recent investigations on media have increased public awareness of police).

162. Goldsmith, supra note 155, at 915 (citing R. MAWBY, POLICING IMAGES: POLICING,

COMMUNICATION AND LEGITIMACY (Willan 2002); A. ADUT, ON SCANDAL: MORAL DISTURBANCES IN


years the Seattle Police Department (SPD) was engaged in a series of lawsuits

where they objected to the release of dash-camera footage to local news

organizations, attorneys, and private citizens.163

On their face, these refusals

were based on interpretations of state privacy laws, out of concern for invading

the privacy of innocent bystanders captured on tape.164

The SPD also initially

claimed the ability to seal footage for three years (unless relevant to current

litigation), and then to destroy footage at that point (the expiration for the

statute of limitations), effectively exempting footage from public disclosure

except in certain narrow circumstances.165

Secrecy, despite certain legitimate

justifications, has been a “familiar protective practice[]” used by police to

avoid “public embarrassment and formal accountability.”166

Thus, it would be

naïve to believe officers (and departments) would: (1) record all encounters

judiciously; (2) preserve all recordings properly; and (3) properly release all

footage related to public requests under state disclosure laws (especially when

the footage is damning), unless strict laws and regulations were in place—

including, potentially, forms of independent citizen oversight.167

These

practices are also evidence of agency-level resistance to surveillance (e.g.

public records requests).

Goldsmith has also argued that any value for the police in increased

visibility was contingent “upon maintaining ‘normal appearances’ and

delivering ‘proper performances.’”168

The possibility that misconduct, then,

might become more visible as a result of increased recording poses a serious

problem for law enforcement image management. As mentioned above, the

recording of non-arrest, “peace keeping” activities may also subject officers to

oversight from a variety of sources that may diminish their ability to “act

alternatively” in situations where they might otherwise have chosen not to

make an arrest; for example, to merely give a warning in a situation where an

offense was not patently illegal.169

In the case of officer-mounted cameras,

however, the police fulfill a gatekeeper role that is not available when

confronted with the lenses of citizen media. This gatekeeping, as evidenced in

SOCIETY, POLITICS, AND ART (Cambridge Univ. Press 2008)).

163. Bryce Clayton Newell, Privacy v. Public Access in the Emerald City, DIGITAL MEDIA L. PROJECT

(Apr. 16, 2012), http://www.dmlp.org/blog/2012/privacy-v-public-access-emerald-city.

164. Id.

165. Id.

166. Goldsmith, supra note 155, at 915 (citing W. Westley, Secrecy and the Police, 34 SOC. FORCES 254

(1956); M. PUNCH, CONDUCT UNBECOMING: THE SOCIAL CONSTRUCTION OF POLICE DEVIANCE AND CONTROL

(Tavistock 1985); M. PUNCH, POLICE CORRUPTION: DEVIANCE, ACCOUNTABILITY AND REFORM IN POLICING

(Willan 2009)).

167. See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 179–80

(Wadsworth Publishing 2000) (recommending the most effective form of citizen oversight).

168. Goldsmith, supra note 155, at 915 (citing E. GOFFMAN, RELATIONS IN PUBLIC: MICROSTUDIES OF

THE PUBLIC ORDER (Basic Books 1971); E. GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE

(Penguin Goffman 1990)).

169. See EGON BITTNER, ASPECTS OF POLICE WORK 36 (Northeastern Univ. Press 1990) (discussing the

ability of police officers to use discretion where the law is ambiguous enough to allow alternative actions).


the SPD example, potentially threatens the public’s ability to conduct effective

citizen oversight, especially when combined with certain efforts and laws that

would restrict the ability of citizens to conduct ‘reciprocal surveillance’ by

filming officers in public spaces or during other police-citizen interactions. On

the other hand, if additional research bears out the findings of one recent

study170

that the use of these systems significantly lowers the rates of officer

use of force and citizen complaints, then some of these concerns may be

alleviated to some degree in practice.

V. WEARABLE CAMERAS, POLICE WORK, AND OFFICER ACCOUNTABILITY

If policing is a means to an end—a means to create social order through

the application of power171

—then the addition of wearable cameras to the

officer’s toolkit must be examined for its potential to quell or instigate

violence. The use of wearable cameras also has the potential to alter or disrupt

the nature of non-reported, so-called “peace keeping,” aspects of policing and

the attendant discretion that officers have historically had for their activities

not resulting in arrests. Wearable cameras may serve to exacerbate the

compromised position of the patrol officer, who is often under the “dual

pressure[s] to ‘be right’ and to ‘do something,’” even in stressful or dangerous

situations.172

The use of officer-mounted wearable cameras is a double-edged

sword. It promises some benefits, but also poses important problems. In this

Part, I suggest that the use of such systems is not necessarily inimical to

freedom (and its attendant privacy and speech concerns), but that significant

checks need to be employed to ensure against the possibility of arbitrary

interference and the improper use of power generated through the

accumulation of information and potential intimidation implicit in these

surveillance practices. In a modern society where surveillance has become a

stable and accepted element of everyday life, I also think it appropriate to

consider the role of research “to make surveillance strange again, and therefore

open to rigorous examination and possibly change.”173

170. See Barak Ariel & Tony Farrar, Report: Self-Awareness to Being Watched and Socially-Desirable

Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-of-Force, POLICE FOUND.

(Mar. 2013), available at http://www.scribd.com/doc/130767873/Self-awareness-to-being-watched-and-

socially-desirable-behavior-A-field-experiment-on-the-effect-of-body-worn-cameras-on-police-use-of-force

(attributing an over fifty percent reduction in police use of force to the experimental placement of video

cameras on the uniforms of officers in a municipal California police department); see also Randall Stross,

Wearing a Badge and a Video Camera, N.Y. TIMES (Apr. 6, 2013), http://www.nytimes.com/2013/04/07/

business/wearable-video-cameras-for-police-officers.html (reporting a nearly sixty percent reduction in police

use of force during the same study).

171. See, e.g., BITTNER, supra note 169, at 94–97 (discussing how police work is, and is not, a tainted

occupation).

172. Id. at 97.

173. David Murakami Wood & C. William R. Webster, Living in Surveillance Societies: The

Normalisation of Surveillance in Europe and the Threat of Britain’s Bad Example, 5 J. CONTEMP. EUR. RES.

259, 260 (2009).


The deployment of officer-mounted cameras may only serve to support

citizen oversight and law enforcement accountability when: (1) the cameras are

either always on (that is, officers have no discretion as to when/whether the

cameras are recording); or (2) officers adhere to strict guidelines requiring

activation during every citizen encounter (unlikely); and (a) citizens are

provided adequate ex post access to recorded footage to dispute charges or

challenge officer conduct; (b) access to recorded footage is strictly regulated to

information relevant to active official investigations and to proper personnel;

and (c) footage is consistently and routinely destroyed in a manner that

respects the above requirements.

Additionally, the use of these officer-mounted camera systems does have

the obvious effect of documenting more encounters, which can then serve as

evidence for or against officer or citizen misconduct. However, too much

reliance on audio-visual evidence could also decontextualize events and also,

possibly, diminish the recognition given by the public and courts to the

realities that confront police officers on the ground. In short, it may lead to

judgments about the wrongness/rightness of police action based on small

windows of reality that ignore some relevant context. This may also affect

policing by further diminishing the amount of discretion available to officers.

Indeed, as Bittner found, police have historically kept few records of

procedures that do not involve making arrests174

and the nature of their work

has unavoidably led to officers having a great deal of discretionary freedom.175

These facts, combined with the reality that police work has long been divided

into both law enforcement and peace keeping activities (which involves officer

discretion and action outside the domain of making arrests),176

suggests that

always-on wearable cameras might begin to document wide swaths of police

conduct that have heretofore been largely left to the officers themselves. Thus,

in the context of skid row policing investigated by Bittner, the fact that officers

use force to effectuate arrests on the basis of risk (considered in the aggregate

for the area) and personal knowledge, rather than mere individual culpability,

may be antithetical to the wider public’s notions about legitimate police work.

Bittner has stated: When arrests are made, there exist, at least in the ideal, certain criteria by reference to which the arrest can be judged as having been made more or less properly, and there are some persons who, in the natural course of events, actually judge the performance. But for actions not resulting in arrest there are no such criteria and no such judges.

177

However, with the rise in the number of cameras present in public, and

the advent of the officer-mounted wearable camera, these non-arrest situations

174. BITTNER, supra note 169, at 192–96.

175. Id. at 48.

176. Id. at 31–32.

177. Id. at 37.


are becoming increasingly documented and, as a consequence, there are

potentially numerous judges (police administrators, elected officials, or the

public) and a variety of criteria against which individual officer conduct may

begin to be judged. These realities are exacerbated by the ease of uploading

footage to the Internet and the availability of police records under public

disclosure and freedom of information laws.

The resultant footage could be viewed, searched, and analyzed by

superiors, and if accessible to the public under state disclosure laws, could

provide broad-ranging access to records of such police work. This reality also

suggests that what it means to do a good job “keeping the peace” could be

defined more by outside forces than by the officers themselves. This will

likely create tensions between the officers’ self-perception as separate and

distinct “skilled practitioners” and the public’s preferred perception of police

as subservient to society.178

Additionally, whether officers engage in forms of

resistance to mandated surveillance or citizen-initiated surveillance (e.g. by

selectively recording interactions with citizens, confiscating

cameras/cellphones, and/or destroying footage) also poses some fascinating,

and important, empirical research questions that bear heavily on any attempts

to normatively define proper policies, laws, or regulations.179

Some argue that wearable cameras promise to document police abuse and

also preserve evidence to exonerate officers falsely accused of improper

conduct.180

A transparent monitoring system, these arguments suggest, would

encourage proper behavior on both sides and would restore trust in policing.181

Others argue that police would only behave more appropriately under

178. See id. at 33 (discussing the “peace-keeping practice as a skilled performance”); Steve Herbert,

Tangled Up in Blue: The Elusive Quest for Police Legitimacy, 10 THEORETICAL CRIMINOLOGY 481, 481–82

(2006).

179. See generally Andrew Grenville, Shunning Surveillance or Welcoming the Watcher? Exploring

How People Traverse the Path of Resistance, in SURVEILLANCE, PRIVACY, AND THE GLOBALIZATION OF

PERSONAL INFORMATION 70, 70 (Elia Zureik ed., 2010) (positing “a model to explain why some [people] resist

surveillance, whereas others accept or ignore it”); Kevin D. Haggerty & Richard V. Ericson, The New Politics

of Surveillance and Visibility, in THE NEW POLITICS OF SURVEILLANCE AND VISIBILITY 3, 3 (Kevin D.

Haggerty & Richard V. Ericson eds., 2006) (studying the factors that are “driving the expansion of

surveillance” and “demonstrating both the multiplicity of influences on surveillance and the complexity of the

political implications of these developments”); Gary Marx, A Tack in the Shoe: Neutralizing and Resisting the

New Surveillance, 59 J. SOC. ISSUES 369, 388 (2003) (discussing “behavioral techniques of neutralization

intended to subvert the collection of personal information”); Torin Monahan, Counter-Surveillance as Political

Intervention?, 16 SOC. SEMIOTICS 515, 515 (2006) (theorizing on the political implications of counter-

surveillance practices); Lisa A. Shay et al., Beyond Sunglasses and Spray Paint: A Taxonomy of Surveillance

Countermeasures, 2013 IEEE INT’L SYMP. ON TECH. & SOC. 191, 191 (2013) (providing a taxonomy for

analyzing successfully employer countermeasures to networked surveillance systems); Dean Wilson & Tanya

Serisier, Video Activism and the Ambiguities of Counter-Surveillance, 8 SURVEILLANCE & SOC. 166, 166

(2010) (examining “the use of video by protesters as a form of ‘counter-surveillance’”).

180. See, e.g., Neill Franklin, Cameras Could Restore Trust in Police, N.Y. TIMES (Oct. 22, 2013, 4:44

PM), http://www.nytimes.com/roomfordebate/2013/10/22/should-police-wear-cameras/body-cameras-could-

restore-trust-in-police (discussing the effects of camera surveillance on police behavior).

181. E.g., id. (“[B]y adopting an objective, transparent monitoring system that allows us to defend those

unjustly accused and correct or punish those caught abusing their power, we can prove to the public we believe

no person should be above the law, particularly those sworn to uphold it.”).


surveillance if they know someone is actually going to watch what their

cameras record (i.e. active monitoring/oversight) and that wearable cameras

shouldn’t replace written reports, including legal justifications for officer

actions.182

On the other hand, preserving the rights of citizens to conduct

reciprocal surveillance is also an important aspect of this overall question.183

Significant questions also remain about whether (and to what extent) these

cameras could also be used to intimidate or chill legitimate speech and other

protected activities. Additionally, long-term storage and archiving of police

footage could pose a threat to privacy interests of innocent citizens, as the

release of such footage under state disclosure laws threatens to “embarrass”

innocent bystanders caught on tape (while also serving the ends of citizen

oversight as a form of reciprocal surveillance). Despite these concerns, the

ACLU claims wearable police cameras are a “win-win” situation, stating that

“[a]lthough we [the ACLU] generally take a dim view of the proliferation of

surveillance cameras in American life, police on-body cameras are different

because of their potential to serve as a check against the abuse of power by

police officers.”184

This is not a claim that should be made lightly without a

deeper empirical understanding of the effect of these systems in society (and

the forms of police officer resistance that may emerge from such research).

Research has indicated that the use of officer-mounted wearable cameras,

at least in the city of Rialto, California, has reduced instances of officers using

force (a sixty percent reduction over a twelve-month period ending in February

2013) and the number of citizen complaints (an eighty-eight percent reduction

over the same time period).185

Earlier research investigating the effects of in-

car cameras claimed substantial value to law enforcement, including enhancing

officer safety, improving agency accountability, reducing agency liability,

simplifying incident review, enhancing new recruit and in-service training

(post-incident use of videos), improving community/media perceptions,

strengthening police leadership, advancing prosecution/case resolution,

enhancing officer performance and professionalism, increasing homeland

182. See Nancy La Vigne, It’s One Smart Step, Not a Solution. N.Y. TIMES (Oct. 23, 2013, 3:22 PM),

http://www.nytimes.com/roomfordebate/2013/10/22/should-police-wear-cameras/body-cameras-for-police-

could-be-one-smart-step (“Whether routine or random, this review is most effective when conducted by

supervisors who hold officers accountable for any evidence of misconduct captured on film. If that doesn’t

happen, then officers will come to view cameras as an empty threat, much as criminals view crime cameras

that are not actively monitored.”).

183. See, e.g., Andy Sellars, Focus Instead on Empowering Civilians, N.Y. TIMES (Oct. 22, 2013),

http://www.nytimes.com/roomfordebate/2013/10/22/should-police-wear-cameras/empower-civilians-to-

record-the-police (“[A] person should have a right to the government’s evidence when addressing unfair or

unlawful police treatment.”); see also Newell, Local Law Enforcement, supra note 65 (balancing concerns for

personal information privacy with the efficacy of law enforcement); Newell, The Massive Metadata Machine,

supra note 65 (“[R]eciprocal surveillance . . . grants citizens greater power to check government abuse and

force even greater transparency.”).

184. Jay Stanley, Police Body-Mounted Cameras: With Right Policies in Place, a Win for All, ACLU

(Oct. 9, 2013), https://www.aclu.org/technology-and-liberty/police-body-mounted-cameras-right-policies-

place-win-all.

185. Ariel & Farrar, supra note 170, at 8; Stross, supra note 170.


security, and upgrading technology policies and procedures.186

The proper role of officer-mounted wearable cameras is also informed by

an understanding of some of the power dynamics implicated by police-citizen

encounters. Steve Herbert provides a useful articulation of three dynamics that

structure police efforts to legitimize themselves to the citizenry they serve.187

This three-pronged analysis provides an important theoretical basis for

critiquing and exploring the risks and benefits of implementing these systems

in actual police practice, as well as police officers’ reactions to being surveilled

themselves (whether by citizens or through the use of these wearable systems

or dash-cam systems). First, democratic government institutions must be

subservient to the public to some degree.188

As such, police must be

responsive to citizen oversight.189

Wearable cameras and citizen media both

plainly hold the promise of exposing wrongful action (one purpose of

oversight). However, as stated above, police have a clear interest in

controlling the extent of their visibility in this regard.190

Because of this, there

is a direct tension between police subservience to the citizenry and the second

dynamic, separation. This dynamic may also help explain why officers often

react negatively to citizens recording their public activities.

Second, Herbert argues that the police’s desire for separation is

implicated both by the legal order (their ability to engage in coercive action is

in some conflict with a purely subservient role, albeit regulated by formal law)

and their desire for professional status191

(the “skilled practitioner” discussed

by Bittner192

). That is, as professionals, they have special knowledge and

training, can make appropriate decisions that could not be made by ordinary

civilians, are distinct from the citizenry, and should be sheltered from citizen

meddling.193

Separation is also sought as officers feel the need to “possess

unquestioned authority, particularly in situations where danger may be

present,” often as a consequence of their desires to remain safe in dangerous

circumstances and to receive deference because of their professional skills and

training, and because they are putting themselves in harm’s way for a higher

purpose.194

The recording of these potentially dangerous encounters also

threatens to expose the use of force, even when arguably appropriate or

necessary under the circumstances, to heightened levels of scrutiny. This may

be one cause for the significant drop-off in the use of force by the Rialto police

186. Int’l Ass’n of Chiefs of Police, The Impact of Video Evidence on Modern Policing, U.S. DEP’T

JUST. (2005), http://www.cops.usdoj.gov/Publications/video_evidence.pdf.

187. See Herbert, supra note 178, at 481 (“Three key articulations are critical to the relationship between

the police and the citizenry, what I term subservience, separation and generativity.”).

188. Id. at 482.

189. WALKER, supra note 167, at 7.

190. Goldsmith, supra note 155, at 915.

191. Herbert, supra note 178, at 482.

192. BITTNER, supra note 169, at 33.

193. Herbert, supra note 178, at 487–88.

194. Id. at 488.


officers195

—and it is possible that it signals an unwillingness by the officers to

engage physically on camera, even when to do so might be appropriate, and

not only when force is unwarranted.

Third, these questions of police epistemology and morality inform

Herbert’s third mode: generativity.196

Police practices and policies have the

potential to shape social life, and the use of officer-mounted cameras poses an

obvious challenge to the status quo of officer-citizen interactions and, likely,

the perception citizens form of officers in general. In any case, there is a

certain disconnect between public sentiment and officers’ self-recognition as

“deeply virtuous . . . risk-taking protectors of society”197

that is likely to play

out in interactions post-adoption of these surveillance systems. In particular, if

officers are enabled to use these wearable camera systems, any attempts to

prohibit the public from likewise recording their encounters with police

become even less legitimate (if a case for their illegitimacy can even be made

in the first place). If the use of these systems contributes to special exemptions

for law enforcement to record conversations under varying state wiretapping

and/or eavesdropping laws, the non-reciprocal nature of these legal exemptions

may constitute a form of impermissible domination and further illegitimate

such policies in the sight of the public.

Relatedly, research on resistance to surveillance has also become an area

of interest within the surveillance studies community.198

Gary Marx has

developed, through a variety of empirical studies, a taxonomy of eleven forms

of resistance or non-compliance: “discovery moves, avoidance moves,

piggybacking moves, switching moves, distorting moves, blocking moves,

masking (identification) moves, breaking moves, refusal moves, cooperative

moves, and counter-surveillance moves.”199

Others, such as Grenville, have

extended some of Marx’s work, finding that awareness of and experience with

surveillance are strongly correlated with forms of resistance to preserve

privacy (although these results also vary significantly by country).200

Given

numerous news reports of officers failing to activate in-car cameras during

potentially problematic interactions, it can be expected that officers may also

find ways to resist the gaze of body-mounted cameras as well.

A. The Privacy Implications of Officer-Mounted Cameras

In addition to the concerns expressed above, officer-mounted wearable

cameras also potentially invade personal privacy. In public spaces, the use of

195. See supra note 170 and accompanying text.

196. Herbert, supra note 178, at 489–91.

197. Id. at 491.

198. See supra note 179 and accompanying text (discussing whether officers engage in forms of

resistance).

199. Marx, supra note 179, at 374.

200. See Grenville, supra note 179, at 75 (comparing awareness and experience across several

countries).


these systems poses fewer problems than when used by police within homes,

businesses, or other non-public spaces, but important problems still remain.

When these systems would be worn and activated during the execution of

search or arrest warrant within another person’s home or other non-public

place, serious privacy implications arise. The benefits of having a record of

police conduct to serve oversight goals may, for the sake of argument, override

the individual privacy interests at stake—at least as far as the initial capture of

the recording is concerned. However, if subsequent access to and use of the

recordings extends beyond these purposes, or is even available to any member

of the public upon filing a public disclosure request, such use poses a serious

invasion of personal privacy. As such, to ensure the use of the information by

the state is non-arbitrary, the state must be restricted to using such footage only

as evidence, the state must destroy all copies when such use is no longer

needed, and access to the footage must be limited to the persons claiming

privacy interests (to allow them to challenge the government’s representation

of events). The use of wearable, or other, cameras during the execution of a

warrant in a person’s home should also be authorized (or not) by a judge, on a

case-by-case basis, as part of the initial warrant determination. If not explicitly

authorized by warrant and supported by probable cause, I suggest a recording

made inside a person’s home during a search or arrest may likely violate that

person’s right to privacy.

Additionally, the increasing effectiveness of facial recognition software,

even in consumer products like Facebook, means that simply recording an

image of a person (in a private or public space) can lead to further

identification. These realities implicate an increased ability of state

surveillance to gather, collect, combine, and analyze personal information, and

this reality suggests that the state is capable of exercising a greater amount of

power over the individual. Officer-mounted wearable cameras, paired with

facial recognition, could easily become much like the current crop of

automated license readers, constantly reading thousands of faces (license

plates), interpreting identity (plate number), and cross-checking this

information against national and local crime databases in real-time. Officers

could then respond to information instantly pushed to a heads-up display (e.g.

Google Glass-like glasses or visors) and react appropriately by detaining,

questioning, or arresting the unsuspecting individual. This power itself is not

necessarily inimical to individual liberty (e.g. the public may have, with proper

informed consideration and deliberative democratic action, approved the

surveillance), but it should be treated with suspicion.

The proposition that a person has waived any and all privacy interests in

all of this “public” information can be made, but the situation is qualitatively

different when the government or other individuals have such easy access to

vast amounts of historical and aggregated information that can be used to

determine patterns or even potentially predict future action or movements

statistically. Of course, nothing is stopping a police officer from trailing X and

recording X’s movements in public (as long as the trailing does not constitute

harassment). However, the likelihood that an officer (or team of officers)

would trail X continuously for months at a time making constant notes about


precise locations and movements, including time spent at each location, was

extremely low when cases like United States v. Knotts201

and United States v. Miller

202 were decided. Presumably it remains so today.

203 Additionally, as

we increase the duration, extent, and means of the intrusion facilitated by the

various mechanisms of surveillance on the scene, we are further undermining

the “voluntariness” of a person’s waiver based merely on their presence in

public. If information privacy rights revolve around the right to control access

to and uses of our personal information, the additional and automatic

information flow from lens to screen to hard disk to long-term archive (and,

potentially, the Internet) encroaches on our right to control the use of the

information for temporally restricted purposes. This loss of ability to control

the “use” of our personal information is caused by the mere fact of

technological intervention and innovation.

As such, the initial waiver (of access) to the fact that a person is in a

(specific) public place can be sustained, but this should not extend to a waiver

allowing the state to subsequently store and utilize that information into the

future absent reasonable grounds (probable cause; perhaps individualized

suspicion) to believe the person has harmed another or broken agreed-upon

social constraints (e.g. committing a crime). The nature of the recording

technologies may generally necessitate some storage in order to cross check for

evidence of criminal action (e.g. use of facial recognition to determine if a

person is suspected of criminal wrongdoing; use of automated license plate

readers to check databases of suspected offenders), but after no match (or

“hit”) occurs, the state must be under an obligation to destroy the information

prior to any further use. This conclusion, that a person’s presence in public

may waive their right to object to another accessing that information, is also

consistent with Westin’s claim that individuals must constantly balance their

desire for privacy with their interest in social participation and stimulation.204

According to Westin, an individual must do this “in the face of pressures from

the curiosity of others and from the processes of surveillance that [society] sets

in order to enforce its social norms.”205

If the structural and political realities in play allow the state to arbitrarily

wield this power over its citizens, it is impermissible as a form of domination.

However, society should have no claim upon a person’s public movements

unless they infringe another’s rights.206

Under this approach, law enforcement,

as an institution of the state, has no business collecting, storing, and mining

201. See United States v. Knotts, 460 U.S. 276, 283–84 (1983) (dismissing the concern that “twenty-four

hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision”).

202. See United States v. Miller, 425 U.S. 435, 443 (1976) (determining that a bank’s twenty-four hour

access to financial information undermines citizens’ privacy interests).

203. See Frank Bannister, The Panoptic State: Privacy, Surveillance and the Balance of Risk, 10 INFO.

POLITY 65, 68 (2005) (describing the logistical and manpower difficulties of physical surveillance).

204. WESTIN, supra note 96, at 10–11.

205. Id. at 7.

206. See MILL, supra note 127, at 63–64.


this information except for legitimate official purposes directly related to

investigating actions by individuals that infringe upon another person’s rights.

B. Transparency and Access to Government Surveillance Footage

Despite decades of increasingly safer streets and fewer instances of

serious police-citizen violence in America,207

the police continue to hold a

highly criticized role in society (this is not a new phenomenon).208

Indeed,

most recent press about police use of new technologies has focused on the

negative implications that these developments have on citizen privacy—which

is an important concern—but less attention has been given to balancing these

privacy interests with the important societal interest in promoting effective and

efficient police work. The tensions between these competing—and

legitimate—aims is substantial and, in the context of police use of wearable

camera systems, limiting the scope of law enforcement data collection and

retention to protect citizen privacy might also protect the privacy of the police

officers using these systems, as disclosure of the resultant footage to the public

under freedom of information laws can allow citizens to track the historical

policing patterns of individual officers and scrutinize officer conduct,

especially if the systems are always on.209

Thus, wearable cameras become a

useful means of watching the officers themselves. In this context, the more

recognizable tensions between protecting privacy and ensuring efficacious

policing are compounded by a direct tension between privacy interests and

freedom of information as citizen oversight—as an important form of freedom-

preserving reciprocal surveillance. The term reciprocal surveillance as used

here, of course, refers to the idea that if the state can watch the people, the

people should likewise be enabled to watch the state. This is one form of

checking government power that resists the reification of potential domination.

One possible response, limiting public access to footage, protects the privacy

of innocent individuals and police officers, but it also limits the ability of the

public to conduct oversight. Such oversight, with its attendant right to access

information about government action, in my opinion, also serves important

First Amendment interests in facilitating informed speech and enhancing

democratic governance.

There are a few variables that must be accounted for to properly

determine whether footage should be publicly accessible through FOI

mechanisms. First, access should always be granted to the individual(s)

207. U.S. Department of Justice, Community Relations Service, Principles of Good Policing: Avoiding

Violence Between Police and Citizens (rev. Sept. 2003), available at http://www.justice.gov/archive/

crs/pubs/principlesofgoodpolicingfinal092003.pdf (last visited Jan. 21, 2014).

208. See BITTNER, supra note 169, at 89–102 (discussing the functions of police in modern society).

209. See Newell, Local Law Enforcement, supra note 64 (providing an example of a related

phenomenon, in the context of tracking officers through querying publicly disclosed automated license plate

reader databases).


depicted in the footage, especially those who are subjects of the police-citizen

interactions depicted. This rule serves two primary purposes: it allows those

charged with crimes or claiming police misconduct to bring evidence to light

that may (or not) help prove their case and it also respects the rights of

individuals to be informed about what information the state’s surveillance has

captured about them so that they can exercise their right to control subsequent

use of such information. Thus, blurring or otherwise obscuring identifiable

information about innocent bystanders prior to further disclosure may also be a

positive option, and requests to do so by the depicted individual(s) should be

honored.

Second, excluding wider public access to the recorded footage may

sometimes restrict the ability of the public and news media to serve important

functions as watchdog. When the footage is captured in public spaces, because

of the claim that presence in public involves a waiver of the right to access

such information, the public’s interest in access to footage may outweigh the

privacy interests of the innocent bystanders. This concern can also be limited

by anonymizing faces of those individuals whose identities are not key to the

oversight purposes of such access (e.g. innocent bystanders).

Third, footage captured within a person’s home (or other private area)

should be protected more stringently. I do not discuss the notion of property

much at all in this Article, but I believe property rights, like speech and

privacy, also serve important liberty interests. Property rights also encapsulate

privacy interests—and in this case, the spatial property rights also protect

informational privacy interests. These limits protect individuals from

interference and domination by states or private agents. Thus, as argued

previously, warrants allowing state access to a person’s home must also allow

or exclude the ability of the state to record footage, or else such recording is an

improper and unreasonable intrusion. Likewise, because of the enhanced

claim to privacy in a person’s home as opposed to in a public space (e.g. a park

or public sidewalk), public access to such footage under FOI laws should only

be allowed when the person whose property and privacy interests are at issue

consents to such disclosure.

VI. THE COSTS OF TRAGEDY

We are often confronted with situations where we must determine which

of the alternative actions available to us constitutes the best or most

appropriate choice, guided by our preferred method or theory of determining

what we ought or ought not to do. This question about what we should do is

what Nussbaum calls the “obvious question.”210

However, Nussbaum argues

that we should also face what she calls the “tragic question” by asking whether

any of the alternative choices available to us are free of serious moral

210. Nussbaum, supra note 23, at 1006.


wrongdoing—not just which alternative is the best or most appropriate

choice.211

Nussbaum argues that facing and considering the tragic question

allows us to think critically and imaginatively about what sort of society we

could—and should—design to avoid forcing people to confront such

“unpalatable” choices.212

Of course, this assessment and the very possibility of

a tragic question only exist if we presume a non-consequentialist approach to

answering normative ethical questions.

By Nussbaum’s account, people are often forced to consider the obvious

question when confronted with a variety of alternative choices, along with a

methodological question about how one should determine the answer to the

obvious question.213

Often, considering and confronting the tragic question as

well, even if only briefly when one of the available options appears free of any

serious moral wrongdoing, is important because doing so: (1) clarifies our

ethical alternatives; (2) helps us to recognize the existence of a tragic dilemma

in appropriate cases; (3) helps us to recognize that tragedy and our own dirty

hands obligate us to make appropriate reparations for our bad act(s); and

(4) allows us to consider how the situation might have been avoided by better

planning, and to actually plan—as a society—to avoid such problems in our

future as we improve our society.214

Nussbaum recognizes a “capabilities”

approach based on recognition of basic human entitlements found in her

analysis of the U.S. Constitution, as well as the possibility for other

approaches, such as a human rights approach.215

In the end, she concludes that

while cost-benefit analyses help us to decide the obvious question, the

approach outlined above allows us to better answer the tragic question.216

Explicitly stated within her analysis is her feeling that “we badly need an

independent theory of basic entitlements to guide us in making public policy

choices.”217

This theory is needed, Nussbaum argues, because “we need to

figure out . . . what entitlements shall be treated as central and matters of

tragedy should they be denied.”218

A. Facing the Obvious Question

In the context of the crossing lenses of police surveillance and citizen-

initiated surveillance of police officers in public spaces, the obvious question

must be considered in a variety of situations. Essentially, this question

requires us to ask, in whatever situation we find ourselves, “what should we

do?” The question is normatively loaded and, at least in Nussbaum’s account,

211. Id.

212. Id. at 1005.

213. Id. at 1016.

214. Id. at 1016–17.

215. Id. at 1022.

216. Id. at 1036.

217. Id.

218. Id.


it requires a consideration of the consequences of our available actions.

Determining how to answer this question is not always easy, as it requires us to

weigh and consider all the alternatives available to us (including inaction), and

to choose the alternative that would be the least morally blameworthy and that

would bring about the best consequences. The following situational examples,

presented here to highlight some of the various considerations that may need to

be taken into account, are based on actual real-life events and cases.

In 2009, during protests following the G20 in London, England, a short

video filmed by a bystander found its way into the popular press and online

media by way of the Guardian newspaper.219

The video depicted an officer

purposefully knocking Ian Tomlinson (who was not directly involved in the

protests) to the ground with his baton without any apparent provocation.

Tomlinson died at the scene shortly thereafter. This example of citizen

journalism (in concert with promotion by the established press) dramatically

changed the way the mass media reported the riots and policing tactics

employed by the local police,220

and it has now been viewed nearly a million

times on the popular video-sharing website, YouTube.221

The release of the

video also resulted in a number of official investigations of the incident and the

eventual firing of the officer for gross misconduct, although he was acquitted

of manslaughter.222

In the cases of Glik and the Oscar Grant shooting,

discussed previously, the recordings were made by a citizen walking through

the Boston Common or while standing in a nearby subway car.223

Out of

concern for what they observed, these individuals began to film the arrests with

their smartphones from a safe distance. And, in Simon Glik’s case, this also

led to his arrest for filming the incident for violation of the Massachusetts state

wiretap statute.224

Imagine the position of the citizen wielding a camera in either of these

cases. A number of “obvious” questions appear in sequence. First, suppose

the camera is not already recording when the citizen sees what she feels is

abuse or unlawful use of force by a police officer (the case in the Glik

example). Within a jurisdiction that requires all-party consent before

recording, pulling out the camera and pressing record (without gaining the

officer’s consent) might very well violate state law. However, failing to act

might allow the abusive conduct to go unverified and potentially unnoticed by

219. Paul Lewis, Ian Tomlinson Death: Guardian Video Reveals Police Attack on Man who Died at G20

Protest, GUARDIAN (Apr. 8, 2009, 4:46 PM), www.theguardian.com/uk/2009/apr/07/ian-tomlinson-g20-death-

video.

220. Greer & McLaughlin, supra note 5, at 1041–42.

221. The Guardian, Video of Police Assault on Ian Tomlinson, Who Died at the London G20 Protest,

YOUTUBE (Apr. 8, 2009), https://www.youtube.com/watch?v=HECMVdl-9SQ (over 970,000 views as of Jan.

6, 2014).

222. Peter Walker, Ian Tomlinson Case: PC Simon Harwood Sacked For Gross Misconduct, GUARDIAN

(Sept. 17, 2012), http://www.guardian.co.uk/uk/2012/sep/17/simon-harwood-sacked-gross-misconduct.

223. See supra Part II.

224. See supra Part II.


those in a position to remedy wrongs or provide justice to the abused. A

number of legal and ethical conflicts also further complicate this situation,

such as the conflict between the potential First Amendment right to record and

the state law prohibition, the privacy rights of the various subjects of the

recordings (including innocent bystanders), the property rights of the camera

owners, and the context of a public space.

Alternatively, let us imagine that the camera was recording prior to the

noticed abuse (or alleged abuse) by the officer, and the initial officer conduct

was unintentionally captured (such as in the Tomlinson case). The camera-

wielding citizen must now decide whether to continue recording (in potential

violation of state law), move the camera so as to avoid capturing any more of

the incident, or turn the camera off (with similar consequences as noted above

in the first example). Admittedly, it is not clear that violating the law in this

example is immoral (unlike murder, for example) or that the decision does in

fact have moral import. However, the potentially adverse consequences to the

citizen—arrest and punishment—would be substantial. Additionally, if we

entertain Nussbaum’s approach to moral reasoning, the law’s denial of the

citizen’s First Amendment rights would create a tragic situation, making the

government’s role in restricting the citizen’s basic entitlements morally

significant.

In either of these two cases, if the recording captures any of the alleged

abuse, the citizen must also decide what to do with the footage. She could turn

it over to the police department to use for internal investigation (although, in

real-life, this option has actually resulted in the citizen being charged with a

crime and the footage used as the evidence of the unlawful recording at issue

for prosecution of the eavesdropping offense), keep the footage to herself, or

she could destroy the footage. Alternatively, she could also post the video to

the Internet, although the reality here is that any expectation of anonymity

would unlikely be justified, and this option could very well subject her to the

same risk of prosecution as turning the footage over to the department.

Destruction in this case could be considered unlawful destruction of evidence

and obstruction of justice, should the abuse be prosecuted by local authorities,

and keeping the evidence hidden could mean, again, that the offense go

unpunished at the expense of justice.

It seems evident that these scenarios suggest that the “obvious” question

does not always have an obvious answer, regardless of whether the situation is

necessarily “tragic”—that is, that none of the available actions would actually

be morally blameless. However, as Nussbaum notes,225

the obvious question

must be addressed. It cannot be escaped, since inaction itself is an answer.

Additionally, it is important to also determine the answer to the tragic question,

since doing so allows us, as a society, to work toward addressing and fixing the

situation our laws and policies have created. The possibility does exist,

225. Nussbaum, supra note 23, at 1009.


however, that each of the various ethical traditions (consequentialist,

deontological, Aristotelian) would lead us to the same conclusion about which

available action would be most appropriate—and presumably also morally

blameless (aside from whether the action ought or ought not to be done).

Presumably, the documentation of the abuse of government power—even in

violation of state law—could be seen as morally permissible under both

consequentialist and deontological accounts of normative ethical theory. If we

accept Nussbaum’s claim that certain costs—based on violations of basic

human entitlements as set forth in our Constitution—are distinctively bad such

that “no citizen should have to bear them,”226

then we can begin to see how our

policy choices have created tragic situations for members of our society, and

that such policies therefore have some moral import because they involve the

violation of basic entitlements, regardless of whether our citizens are actually

confronted with “tragic” situations.

B. Facing the Tragic Question

The tragic question is not necessarily so obvious, and it is also very

difficult to answer. To answer the tragic question, we must determine whether

any of the available alternatives are morally acceptable—not just which

alternative produces the best consequences, but whether any of the alternatives

are free from serious moral blame. In the first scenario, the initial set of

alternatives consists of choosing to begin recording or to refrain from

documenting the incident. At first glance, choosing to record would not

necessarily appear to involve morally blameworthy conduct, except that such

action would potentially be in violation of state criminal law—something our

intuitions might tell us is generally morally suspicious. To commit a crime, we

might say, is morally blameworthy. But what of the (un)justness of the law

itself, or our actual moral obligation to obey the law (whether perceived as just

or unjust), or the potential that the state law is potentially in violation of a

higher law, the U.S. Constitution and First Amendment of the Bill of Rights?

On the other hand, choosing not to record, as we have said, might allow

the abusive conduct to go unverified and potentially unnoticed by those in a

position to remedy wrongs or provide justice to the abused. Audio-visual and

photographic materials are, after all, important and very powerful sources of

evidence. Allowing an act of injustice to go unpunished (or at least failing to

act to prevent such an outcome when one could have done differently), can

also be seen as a violation of our moral obligations to the abused or to society

generally. Morally significant questions might also be raised should such a

choice violate our own deeply held moral convictions, affecting our autonomy

and integrity. We might also say that, as citizens, we have some obligation to

prevent and report unlawful and abusive conduct on the part of our

226. Id. at 1036.


government, or to hold our government accountable for its wrongs and

violation of its citizens’ rights. In the second example, the situation is

compounded by the additional question about what to do with footage already

obtained (whether purposefully or unwittingly). The considerations are

similar, however, and not necessarily any easier to answer. Obstruction of

justice and destruction of evidence of serious wrongdoing can easily be seen,

intuitively, as morally suspicious actions.

One might object to my characterization of these situations as potentially

tragic on the basis that documenting state conduct—in any circumstance—

should be a fundamental right in a democratic society with such lofty ideals of

free speech and free press as we have in the United States. Alternatively, an

objection to my reasoning above could discount the argument that legality

implies morality, and that citizens should be morally free to disregard unjust

law in the pursuit of justice. Indeed, many of these situations might not require

the individuals to make morally repugnant choices, and I do not hold that

morality requires adherence to any law merely because it is codified.

However, regardless of whether a morally acceptable answer is available

within these options, I argue that the proper choice is not always obvious,

especially in the split second when the individual must make their decisions.

Additionally, it is in some (different) sense tragic that we (as a society) have

designed some of our laws and policies in a way that subject citizens to

situations where they must struggle with these questions in the first place

(regardless of their strictly moral import). The fact that portions of our society

subject their citizens to having to struggle with these difficult questions on a

regular basis—decisions that must also be made without time for reflection and

deliberation—is itself a very undesirable reality.

Considering whether, and when, violation of law might be morally

justified and acceptable appears fraught with difficulty and competing

considerations of significant import, despite the importance of that endeavor.

Additionally, when police surveillance—in the form of wearable cameras, et

al.—is broadly allowed by the law, based on the idea that citizens have no

reasonable expectation of privacy in public spaces, any legal restraints (e.g.

eavesdropping statutes) on citizens looking back and conducting reciprocal

surveillance in these same public spaces becomes very problematic as,

potentially, a form of codified state domination that strikes at the core values

of the First Amendment.

In the following section, I approach this conceptual space from a different

position, and aim to explore what type of respect, and what qualitative aspects

of respect, should be owed to police officers or other subjects of video

recordings in public spaces by the citizen journalist, as I believe that discussion

can inform (though not necessarily answer) some of the open questions we’ve

just addressed.

VII. THE ROLE OF RESPECT IN CONDUCTING “SOUSVEILLANCE”

In this section, I am primarily concerned with what respect ought to be

owed by citizen media producers to the subjects of their recordings. To a


lesser extent, as mentioned above, I am also interested in addressing the proper

respect that should be owed to the rule of law (or moral obligation to obey the

law). In Two Kinds of Respect,227

Stephen Darwall argues that most general

accounts of respect in philosophical literature fail to account for two different

types of respect, namely “recognition” and “appraisal”, that encompass two

qualitatively different ways in which persons might be the object of respect

(either of another or the individual herself). In this Article, I aim to address

both of these types of respect to varying degrees.

Darwall argues that the first type of respect, recognition respect, consists

of “a disposition to weigh appropriately in one’s deliberations some feature of

the thing in question and to act accordingly.”228

Thus, a person may have more

or less recognition respect for various types of features of the thing in question,

but recognition respect is not an appraisal of an individual’s character, and it

cannot vary between things so long as the features are the same. This is the

general respect for persons that we should have for all persons simply because they are moral agents, and it delineates the boundaries of permissible moral

action in regard to the thing respected. On the other hand, appraisal respect is

concerned with an appraisal of the person herself, or of that person engaged in

some particular pursuit. Darwall concludes that his two-part conception of

respect allows us to see that “there is no puzzle” in the idea that all persons are

worthy of respect as persons, but that some persons are deserving of more or

less respect because of their personal characteristics.229

Of particular relevance to our present inquiry, is the conclusion by

Darwall that “various ways of regarding and behaving toward others, and

social arrangements which encourage those ways, are inconsistent with the

respect to which all persons are entitled.”230

Thus, in our present context,

certain social arrangements (particular forms of enforcement of eavesdropping

laws and policies, for example) and certain behaviors that are encouraged or

forced by these situations (the actions demanded by confronting the obvious

question) may run the risk of withholding the proper respect due to various

persons involved (officers, bystanders, or the citizen journalist herself). This

conclusion then, if true, should provide strong reason to consider these issues

when confronted with obvious or tragic questions in the context of

citizen/government interaction.

227. Stephen L. Darwall, Two Kinds of Respect, 88 ETHICS 36 (1977).

228. Id. at 38.

229. See id. at 46 (“[T]here is no puzzle at all in thinking both that all persons are entitled to respect just

by virtue of their being persons and that persons are deserving of more or less respect by virtue of their

personal characteristics.”).

230. Id. at 36.


A. Respect for Subjects of Recordings

The premise that all persons are entitled to respect is, as Darwall notes,231

a proposition that has received quite a bit of scholarly attention over the years.

Despite some controversy, some have claimed that Immanuel Kant’s argument

that all persons should be treated as ends in and of themselves expressed, or

should have expressed, confirmation of this proposition.232

John Rawls and

other influential philosophers have also argued—or at least recognized—that

all persons are owed some sort of respect as rational moral agents.233

This

basic respect for persons simply by virtue of the fact that they are persons is

what Darwall calls “recognition respect.”234

The other type, or “appraisal

respect,” is a type of respect that can be deserved, gained, or lost.235

This is the

respect we refer to when we say something like, “I respect X because she does

Y so incredibly well, despite all the obstacles she has overcome.” We can also

easily conceive of a valid form of appraisal respect due to police officers

simply because of the vitally important office, and role in society, that they

have voluntarily chosen to undertake, and in the form of service they provide

to society. Darwall himself also posited that the law itself can be the subject of

recognition respect.236

Assuming the truth of the premise that all persons are worthy of respect,

police officers and others (including the citizens recorded by officer body-

cameras) potentially subject to being recorded while physically present in

public spaces, should be owed, at the very least, recognition respect by those

who would film or record them (and when considering what use to make of the

resulting recordings). If we assume even non-persons, such as the law itself,

are worthy of recognition respect. What exactly do these assumptions mean, in

the context of citizen-initiated surveillance, and how does (or should) this

change what a citizen journalist should consider when confronting the obvious

or (potentially) tragic questions presented above?

Darwall states that recognition respect entails “giving appropriate

consideration or recognition” to an object and then “deliberating about what to

do.”237

What action is appropriate, based on this form of respect is somewhat

controversial, however, since this is really a question of what moral obligations

231. Id. (“An appeal to respect as something to which all persons are entitled marks much recent thought

on moral topics. The appeal is common both in writings on general moral theory and in work on particular

moral problems.”).

232. Id.

233. E.g., id. at 36 (citing JOHN RAWLS, A THEORY OF JUSTICE (Harvard Univ. Press 1971); Bernard

Williams, The Idea of Equality, in MORAL CONCEPTS 158–61, (Joel Feinberg, ed., Oxford Univ. Press 1970);

DAVID GAUTHIER, PRACTICAL REASONING 119–20 (Oxford Univ. Press 1963); R. S. DOWNIE & ELIZABETH

TELFER, RESPECT FOR PERSONS 15–17 (Allen & Unwin 1969)).

234. Id. at 38.

235. Id. at 39.

236. Id. at 38 (“The law, someone’s feelings, and social institutions with their positions and roles are

examples of things which can be the object of this sort of respect.”).

237. Id.


we have to each other generally. At a minimum, it appears uncontroversial

that for a person, such as a police officer, recognition respect would require the

citizen journalist to “take seriously and weigh appropriately the fact that” the

police officer is a person (whatever this means).238

On the other hand,

appraisal respect for an officer would be an “attitude of positive appraisal of

that person either as a person or as engaged in some particular pursuit.”239

Intuitively, a person voluntarily serving in an important societal role, at less

than minimum risk of bodily harm to themself, should be the object of some

appraisal respect for being engaged in that sort of pursuit. However, since

appraisal respect can be lost or gained based on whether the object deserves

such respect, an officer allegedly abusing their position or violating the rights

of another person can lose most (if not all)240

of the appraisal respect they

might otherwise be owed.

In context, then, a citizen journalist recording (or considering whether to

record) a situation that allegedly appears to be a case of unlawful or

unnecessary use of force by a police officer against another citizen, should at

least consider (and base her behavior on) the fact that the officer (and others

within the frame of the camera’s lens) deserve some respect, namely

recognition that they are persons. This conclusion, however, may not

necessarily limit any right to record, and may merely create an obligation to

not violate the officer’s basic human entitlements. Presumably, we can

conclude without too much controversy that this means we should not violate a

moral right vested in the officer by virtue of being a person, unless such

violation was necessary to prohibit equal or greater violation against a more

innocent person (the person subject to the officer’s abuse). This exception

might be justified on the basis that the officer, by violating another’s basic

rights, has waived their own. For example, I suggest this would require us to

conclude that killing the officer to stop the abuse would not be a morally

appropriate response, absent some cause to believe the officer’s abuse would

very likely kill or very seriously injure another person.

Similarly, I would suggest that because of this respect, and potentially the

officer’s position, citizen onlookers should refrain from assuming lightly that

the officer was engaged in applying an inappropriate measure of force,

especially in cases when the detainee might pose a significant threat to the life

or body of the officer (though this conclusion doesn’t necessarily mean that the

citizen ought to refrain from recording the incident). On the other hand, when

it is clear that an officer is abusing a person, and not acting within a

permissible range of self-defensive response, the recognition respect owed to

the detained person might provide greater incentive to responsibly document

238. Id.

239. Id.

240. I do not attempt to discuss here whether the office itself is deserving of some appraisal respect,

regardless of the actions of the officer, and what impact this consideration might have on the citizen’s

decision-making process.


and report the incident—although, as noted above, this decision might not be

without any moral (or at least other forms of personal) cost in all

circumstances. Instances of “virtual vigilantism” and public shaming have also

begun to appear abundantly online, and a proper consideration of recognition

respect would likely limit the number of inappropriate disclosures of

embarrassing information that was not of any public interest in furtherance of

self-government or government accountability. That is, moral choices might

appropriately limit some speech in cases where the law will not (and should

not) actually restrict such speech.

Throughout this analysis, however, I do not intend to discount the nature

and amount of power and authority that a law enforcement officer holds in our

society. One might object to my analysis of what respect is owed, based on a

claim that such power tilts the balance so heavily in favor of the officer when

potential abuse is taking place that the citizen should be able to more freely

record the incident without such a serious consideration of what respect is

owed to the officer(s) involved. Indeed, the recordings of officers routinely

discussed by the press and citizen media community have generally

documented abusive and inappropriate state action, and have not generally

been found to be false, manipulated or distorted so as to vilify officers without

cause. However, in response to this objection, I believe that officers do

deserve appraisal and recognition respect by virtue of their professional

positions and as persons. The positions that they must confront are often

fraught with tension and danger, and they are forced to make decisions in these

situations very quickly. The possibility that citizen media documenting police

action might begin to look more like the cases of virtual vigilantism described

above remains a very real possibility, and I think that seriously considering the

issue of respect will promote more fruitful use of the power wielded by citizen

journalists in the coming years.

B. Respect for Law

Finally, what moral obligation, or respect, does a camera-wielding citizen

owe to the law (if any)? What effect might our appraisal of the law (whether

subjective or objective) as unjust mean to our moral obligations? In his

analysis, Darwall states that to have respect for law is to be disposed to regard

the class of actions prohibited by the law as immoral.241

This claim allows for

the idea that breaking an unjust law could be morally right choice, but also

requires that we be disposed, generally, to consider illegal conduct morally

impermissible in the first instance. I believe that someone can be said to have

respect for the law (construed broadly; perhaps the rule of law), even though

that respect may lead to fighting against or violating certain law-on-the-books

241. See Darwall, supra note 227, at 40 (“To have such respect for the law, say, is to be disposed to

regard the fact that something is the law as restricting the class of actions that would be morally permissible.”).


in order to promote change. Martin Luther King, Jr. was obviously deeply

concerned with what he saw was the unjustness of laws allowing slavery and

segregation, or the use of otherwise valid laws for an unjust purpose.242

To

quote from Dr. King more substantially: Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest. I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

243

Just as Darwall makes a distinction between different types of respect,244

that respect for law can be—and should be—bifurcated. A general disposition

to consider illegal conduct as morally suspicious upholds the intuitively

attractive notion that having a law abiding citizenry and government promote a

healthy society. However, positive legal change could not exist without a

willingness to identify and discuss, and potentially even break, laws that are

manifestly unjust, or that are unjust as applied in a particular set of

circumstances. In particular, laws that provide one party with dominating

authority over another—in the sense described above in our discussion of

neorepublican political philosophy—are ripe for democratic and individual

challenge.

VIII. CONCLUSION

In conclusion, it is important to reiterate that the aim of this Article has

not been to conclusively resolve the tragic, or even the obvious, questions

confronting citizen journalists in the field. Rather, I hope that this discussion

will help make the case that the current situation, brought about by the conflict

242. Martin Luther King, Jr., Letter from a Birmingham Jail, AFR. STUD. CENTER – U. PA. (Apr. 16,

1963), available at http://www.africa.upenn.edu/Articles_Gen/Letter-_Birmingham.html (“The answer lies in

the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One

has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to

disobey unjust laws.”).

243. Id.

244. See Darwall, supra note 227, at 38 (“The two different ways in which a person may be respected

provide but one instance of a more general difference between two attitudes which are both termed respect.”).


between First Amendment ideals, as announced by the First Circuit in Glik v. Cunniffe and Seventh Circuit in ACLU v. Alvarez, and the enforcement of

eavesdropping laws against citizens filming officers carrying out official duties

in public spaces is untenable. I have argued that confronting the tragic

question in this context is important because facing that question allows us to

think critically and imaginatively about what sort of society we could—and

should—design to avoid forcing citizens to confront such “unpalatable”

choices. Even if these situations are not ultimately “tragic” in the sense

Nussbaum uses the term, this thought process can be valuable in planning for

positive future change, in law or policy. When considered against state use of

mobile, officer-mounted, video cameras, the need to limit the unbalanced

possibility of domination made possible by increased state information

collection and analysis is pronounced.

By facing the set of choices our current policies force upon (sometimes

unwitting) citizens, we are continuing this conversation in a new and important

way, rather than just simply focusing on promoting an interpretation of the

First Amendment without considering the moral costs and questions involved.

The First Amendment analysis in legal scholarship is undoubtedly important

and useful to courts and lawmakers. However, considering and confronting the

tragic question and the other important moral issues involved will allow us (as

a society, bar, judiciary, academy, or as individual citizens) to better

understand what situations our policies have engineered and what ethical

alternatives are available to us (and to the individual citizens who face these

obvious and tragic questions regularly). This debate will also help us to

recognize the potential existence of tragic dilemmas that our policies have

brought about, and will help us recognize that our own dirty hands obligate us

to make appropriate reparations for our bad acts. Most importantly, facing the

tragic question allows us to consider how this situation might have been

avoided by better planning, legislative drafting, or the promulgation of

appropriate departmental policies, and to actually plan—as a society—to avoid

such problems in the future as we improve our society.

In the end, persons (including police officers) ought to enjoy certain

rights to privacy in public spaces. The right to control how our personal

information is accessed and used (for example, through aggregation from

multiple sources into large databases) is vitally important if we are to care

about personal privacy at all. Entering a public space may necessarily imply a

waiver of certain types of information related to our presence in that space, but

such a waiver need not encompass all future uses, analysis, and aggregation of

such information over time (especially by government agents). However, the

public interest in ensuring our political liberty and effective citizen oversight of

government agents, along with First Amendment rights to gather and access

information, points to the conclusion that police officers and other public

officials have, by virtue of their public roles, effectively waived certain of their

rights to privacy while carrying out their official duties in public spaces. As

such, the right to conduct reciprocal surveillance of state agents conducting

their official duties in public spaces (a form of “smartphone journalism”) is an

important aspect of reducing domination and preserving individual liberty.

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